Cross-Canada Infrastructure Corridor, the Rights of Indigenous Peoples and 'Meaningful Consultation'
Perceived constraints on getting Canadian commodities to global markets have generated renewed interest in a cross-country infrastructure corridor, a concept that was initially conceived several decades ago. Consideration of the corridor concept exists in a broader context of fast-evolving jurisp...
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| Format: | Article |
| Language: | English |
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University of Calgary
2020-10-01
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| Series: | The School of Public Policy Publications |
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| Summary: | Perceived constraints on getting Canadian commodities to global markets have
generated renewed interest in a cross-country infrastructure corridor, a concept
that was initially conceived several decades ago. Consideration of the corridor
concept exists in a broader context of fast-evolving jurisprudence in relation to the
rights of Indigenous peoples in Canada. The Canadian legal landscape pertaining
to those rights has evolved significantly in the years since the northern corridor
concept was conceived, particularly with respect to Crown consultation obligations.
Crown obligations in relation to the proposed corridor would be significant with
respect to the rights and interests of Indigenous peoples. A cross-Canada corridor
would, by its linear nature, directly and indirectly affect many diverse Indigenous
communities that are situated in non-treaty, modern treaty and historical treaty
contexts across the country. For example, the assessment and approval process
for the Northern Gateway project involved more than 80 Indigenous communities
and territories in Alberta and British Columbia, and the now-cancelled Energy East
project would have crossed the traditional territory of 180 Indigenous communities
on its route from Alberta to the Maritimes. Similarly, the review and approval
process for the Trans Mountain Expansion project (TMX) involved at least 120
Indigenous communities along its route from the Edmonton area to Vancouver.
In today’s legal context, the Crown (i.e., federal or provincial governments, or both)
must consult, and in some situations accommodate, Indigenous communities in
situations where the Crown has actual or constructive knowledge of the existence
or potential existence of Aboriginal rights or title and contemplates conduct that
might adversely affect those rights or title, such as approval of major infrastructure
projects. Pursuit of the corridor project, to the extent that it involves Crown action
that may adversely affect established or asserted Aboriginal rights or title, would
trigger the Crown’s duty to consult, as would review and approval of specific
infrastructure projects that may eventually fall within the corridor. |
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| ISSN: | 2560-8312 2560-8320 |