Cross-Canada Infrastructure Corridor, the Rights of Indigenous Peoples and 'Meaningful Consultation'

Abstract

Pursuit of a cross-country infrastructure corridor raises complex legal issues with respect to the rights and interests of Indigenous peoples in Canada. The legal context has changed significantly since the corridor concept was initially presented in the 1960s. This article sets out the diverse legal landscape across treaty and non-treaty contexts in Canada today, and then describes Crown obligations with respect to Indigenous peoples, including “meaningful consultation”, that would be involved in pursuing the corridor concept. A key observation is that, while the jurisprudence provides relatively comprehensive guidance on the meaningful consultation standard, the contextual nature of the duty to consult legal framework will make it difficult to achieve in the practical Corridor context. This article also puts forward preliminary comments and queries with respect to legal forms that the Corridor concept make take and formal forums in which Crown consultation might occur, including in relation to the new federal impact assessment regime. Overall, this article observes that tensions, complexities and sensitivities that have produced friction in the contemporary legal sphere pertaining to large linear infrastructure projects and the rights of Indigenous peoples would still be present in pursuing the corridor proposal. Meanwhile, further change in the law is entirely foreseeable.