It’s been some 16 months since Primer Minister Carney committed to fast-tracking mega projects that served the national interest. To date, the number of completed net-new major-projects serving the national interest is equal to zero. In fact, the number of shovels in the ground even tangentially related to net-new major-projects serving the national interest is pretty much zero.1
It’s certainly true that Canada - like most Western countries - seems largely unable to make big things happen within reasonable timelines. Regulatory compliance, excessive permitting requirements, environmental reviews, and then more environmental reviews all share part of the blame.
But that’s not the whole story. It’s no secret that several high profile projects have been slowed down when Indigenous communities asserted various treaty rights. And the scope of the legal roadblocks appear to be expanding.
However, if we explore the larger context of the special rights held by Indigenous bands, we’ll see that there’s no law in Canada that grants any party an absolute veto over land use decisions. But there is enough legal ambiguity, conflicting incentives, and entrenched political leverage to turn the process itself into an effective veto.
Let’s identify some of the moving parts:
Treaty rights often protect hunting, fishing, and other land use. Courts have interpreted how some such rights should be applied in practical cases.
Aboriginal title gives constitutional protections over specific land uses that are independent of treaty rights.
Duty to consult and, where appropriate, accommodate Indigenous interests can apply in cases where there is no treaty or established title.
Important Supreme Court decisions include Haida Nation v. British Columbia (2004), where the Court established that governments must consult Indigenous peoples when contemplated Crown decisions could adversely affect asserted or established rights. However, that judgement also acknowledged that it wasn’t yet clear when accommodations would be binding.
The 2005 Mikisew Cree First Nation v. Canada decision regarding Treaty 8 found that the Crown’s land use authority was constrained by a duty to consult in cases where Mikisew’s hunting and trapping rights could be adversely affected. The key point here is that neither the Crown, nor treaty holders have absolute powers.
In Tsilhqot’in Nation v. British Columbia (2014), the Court unanimously recognized Aboriginal title - including the right to decide how land is used and to benefit from its use - over a substantial area of land. However, even without consent, a government could still overrule opposition if it satisfies the constitutional justification test.
And in 2017, the Clyde River (Hamlet) v. Petroleum Geo-Services Inc. decision set aside regulatory approval for offshore seismic testing because the consultation process had not adequately addressed the Inuit community’s concerns and potential impacts on its rights. While this certainly paused the project, there was nothing stopping the Crown from trying again.
None of those rulings grants rights for Indigenous groups to unconditionally block projects. So any claim that the courts have literally ceded national sovereignty is incorrect. Nevertheless, it’s the process where things are getting hung up. All it takes is a single claim from any one of hundreds of bands and a project is suddenly facing years of litigation and countless millions of dollars in costs.
All of that has been further complicated by modern judicial choices. The consultation doctrine, the scope of Aboriginal title, and the proportionality requirements for justifying infringements all come from judicially developed principles.
Those principles contribute to a legal environment that encourages claims. And once a claim is launched, courts are forced to apply their judgement to politically loaded questions, including:
How much evidence of a potential right is enough to trigger consultation?
How serious must a potential impact be?
What form and scope should consultation take?
When is accommodation required and at what cost?
How should a court weigh the infringement of a protected right against a public objective?
Those are all real questions, but resolving them takes a lot of time and a lot of money. Together, it’s those questions that represent the single most powerful obstacle for successful major-project completion and economic growth. And at least some of those questions should have been comfortably resolved - by Parliament - decades ago.
There’s more to read:
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The lone exception being early work on the Darlington New Nuclear Project - although that was already in advanced planning stages before Carney was elected.
The only answer is to rewrite sec 35 of the constitution for more clarity. All the "treasonous separatist and Trump supporter" media rhetoric should be aimed at anyone who disagrees. Focus on this one constitutional clause and get it done.