Revitalizing Environmental Governance in Canada

Massive shifts in Canadian environmental law occurred over the past four years, most notably through two omnibus budget bills in 2012 that repealed or amended most of Canada’s most significant environmental laws. The legal and practical impacts of federal deregulation, however, have had an important counterpoint in the dynamic revitalization process that another area of law has been undergoing in Canada today: the legal traditions of Indigenous peoples.

Stepping into the void of inaction or deregulation by other levels of government, in recent years First Nations have banned proposed heavy oil pipelines from their territories, denied consent to resource projects following their own in-depth review processes, put in place their own tribal park designations, and taken steps to safeguard the herring fishery. At the same time that Indigenous peoples are revitalizing and applying their own laws to contemporary environmental challenges on the ground and on the water, new legal and political space appears to be opening up to advance the goals of recognition and reconciliation between Indigenous peoples and broader Canadian society, including our respective legal orders.

In 2014 in Tsilhqot’in Nation v British Columbia, the Supreme Court of Canada confirmed that Aboriginal title includes “the right to decide how the land will be used” and “the right to pro-actively use and manage the land” and reaffirmed the importance of Indigenous laws and land tenure systems as a source of Aboriginal title. The exercise of Indigenous law can also be linked to other Aboriginal and treaty rights, particularly governance rights, as the Supreme Court of Canada discusses in R. v. Pamajewon.

This “golden thread” of Indigenous law recognition was also present in the calls to action of the Truth and Reconciliation Commission which recommended, as a key foundation of a renewed nation-to-nation relationship between the Crown and Indigenous peoples, a commitment to:

Reconcile Aboriginal and Crown constitutional and legal orders to ensure that Aboriginal peoples are full partners in Confederation, including the recognition and integration of Indigenous laws and legal traditions in negotiation and implementation processes involving Treaties, land claims, and other constructive agreements.

And in a recent mandate letter from the Prime Minister of Canada to the Minister of Indigenous and Northern Affairs, Minister Bennett was directed to work collaboratively with Indigenous peoples, provinces and territories “to implement recommendations of the Truth and Reconciliation Commission, starting with the implementation of the United Nations Declaration on the Rights of Indigenous Peoples”, which requires Free, Prior and Informed Consent as the standard for Indigenous consultation on resource development in their territories. The Prime Minister also mandated a broad review (“with advice from the Minister of Justice, in full partnership and consultation with First Nations, Inuit, and the Métis Nation”) of “laws, policies, and operational practices” to ensure that Canada is acting “in accordance with its constitutional and international human rights obligations, including Aboriginal and Treaty rights.”

Seen in the context of other mandate letters to federal ministers prioritizing an immediate review of Canada’s environmental assessment processes, restoring lost protections, and incorporating modern safeguards to the federal Fisheries Act, and modernizing the National Energy Board, it would seem that the federal commitment to deepening recognition and application of Indigenous law has the potential to have a transformative effect on environmental governance in Canada in the years to come.

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