Building Canada Act leaves much open to interpretation on Indigenous consultation, says lawyer
Sara Mainville, a partner at JFK Law and former chief of Couchiching First Nation in northwestern Ontario, said under the Building Canada Act, once a project is deemed in the national interest, it would be difficult to roll it back.
The act was passed last week and aims to speed up projects of national interest, including energy development projects, by allowing special designated projects to bypass some federal laws.
Mainville said under the legislation, Indigenous groups potentially impacted by a project should be part of the process deciding if it is in fact of national interest.
"They have to make the right decision each and every time," said Mainville.
"They could only do that with fuller engagement, meaningful engagement with First Nations, Inuit and Métis people."
The bill says that among factors to be considered in deciding if a project is within the nation's interest are whether it advances "the interests of Indigenous peoples" and if it contributes "to clean growth and to meeting Canada's objectives with respect to climate change."
Mainville said this leaves a lot to be interpreted.
"Advancement of Indigenous interests is such generic language, like what does that mean in a real way?" she said.
"This is really going to be for the courts to decide, unfortunately, unless there's some real markers put in place."
Mainville said if processes are not in the legislation, there's no guarantee they will happen.
"This idea of 'just trust us, we're gonna get this right,' it's asking too much of First Nations with real interests in this area that potentially is going to be impacted by this pipeline," said Mainville.
Impacts of pipelines on B.C.'s north coast
Alberta Premier Danielle Smith spoke to CBC Radio's The Early Edition Wednesday about reviving a plan to build a pipeline to bring oilsands crude to B.C.'s north coast for export to Asia, with the endpoint in Prince Rupert, B.C.
An organization representing the Gitga'at, Gitxaała, Haida, Heiltsuk, Kitasoo Xai'Xais, Metlakatla, Nuxalk and Wuikinuxv First Nations told CBC Indigenous last week that they wouldn't be in favour of any new pipelines in their region.
Smith said on The Early Edition that bitumen, the type of petroleum mined in the oil sands, is the single most valuable product in Alberta, worth about $9 trillion.
"No one leaves $9 trillion in the ground; we have to find a way to get it to market," said Smith.
Smith said it would be essential for any linear infrastructure project to have Indigenous ownership across the line.
"I would just ask for people to have an open mind and see that if we can identify the issues that are causing concern, work through them one at a time, I think that we would be stronger as a country," said Smith.
Rashid Sumaila, a professor at the University of British Columbia and Canada research chair in interdisciplinary oceans and fisheries economics, studies the overall cost of projects like pipelines on society, taking into account impacts on the environment and societal implications now and for future generations.
In 2012, Sumaila estimated that a major oil spill cleanup on B.C.'s North Coast could cost up to $9.6 billion, and cost the region's commercial fisheries, port, ferry transportation and tourism industries more than $300 million.
Sumaila said other costs are intangible, like the impact on First Nations culture if there is a reduction in salmon.
"What's the value of that? That doesn't go into the big company calculations," said Sumaila.
Sumaila said there are benefits to projects like pipelines in the short term, like profit and jobs for individuals, but the long term negative costs are usually left to the larger society to deal with.
"I think we need to zoom really sharply on the fact that there's usually a disconnect between those who gain and those who bear the cost," said Sumaila.
Mainville said cumulative impact is a tool First Nations in B.C. could potentially use to stop unwanted resource developments.
A B.C. Supreme Court decision in 2021 found that cumulative impacts of extensive industrial resource development unjustifiably infringed on Blueberry River First Nations' treaty rights, leaving its members unable to exercise their rights on much of their traditional territory.
As a result the court ordered the province to prohibit further development in the area that would infringe on Blueberry First Nations' treaty rights.
"Similar thing can happen along these coastal regions where there's just too much development," said Mainville.
The federal government has said the prime minister will meet with First Nations, Inuit, and Métis in the coming weeks, with the first meeting happening on July 17 with First Nations.
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