Public Interest Versus Indigenous Confidence: Indigenous Engagement, Consultation, and 'Consideration' in the Impact Assessment Act

Abstract

Following a long and contentious law reform process, Canada’s new Impact Assessment Act came into force in 2019. While the Act constitutes more of a retrofit than a rebuild of the previous regime, it does include significant changes with respect to engagement and consultation with Indigenous communities. This article presents these dimensions of the Act, noting differences and improvements over the previous regime. It then goes on to explore how the new Act relates to Crown consultation obligations with respect to Indigenous communities, with particular focus on the duty to consult and accommodate, and, in a preliminary way, implementation of the United Nations Declaration on the Rights of Indigenous Peoples and associated notions of consent. Overall, the analysis shows that while the Act includes many opportunities and requirements for Indigenous engagement and consultation, it fails to provide much needed clarity around implementation of the Declaration, Indigenous consent, and the duty to consult in the project-level assessment realm. Perhaps unsurprisingly, the Act represents a relatively narrow interpretation of UNDRIP and the associated concept of free, prior and informed consent. Ultimately, under the new Act the rights and interests of Indigenous peoples become “considerations” within a new public interest decision-making paradigm that is premised on final decision-making power held by the federal government. This structure may jeopardize achievement of the original law reform impetus of restoring public confidence – and Indigenous confidence - in the federal assessment regime.