Canadian Lawyer

May 2021

The most widely read magazine for Canadian lawyers

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www.canadianlawyermag.com 27 Scott Stoll, a partner in Aird & Berlis LLP in Toronto, whose practice includes energy, First Nations and infrastructure. "The mandate will hopefully permit the CER to improve the level of trust and legit- imacy with First Nations, the Métis Nation and Inuit in how it carries out its mandate," Stoll says. "Improved trust will reduce challenges and uncertainty of CER decisions," he adds. "However, it is important to recognize that this will not be developed or attained unless the IAC's advice is actually received and incorporated into the CER's mandates and regulatory operations in a legitimate and meaningful way." The IAC launched in August 2020, and its inaugural meeting took place the following month. Its overarching mandate is to advise the board on how the CER can build a renewed relationship with Indigenous peoples. It will not deal with specific CER-regulated projects, detailed operational matters or regulatory decision-making or provide advice on any particular decision, order or recommendation made by the CER's commission. The legislation that created the CER in 2019 required an advisory committee, says Terri-Lee Oleniuk, a partner at Blake Cassels & Graydon LLP in Calgary with a special- ization in regulatory, environmental and Indigenous law issues. That legislation — Bill C-69: An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts — didn't set out the function of the IAC. "These terms of reference are the first window into how the committee will func- tion," she says. Indigenous groups have participated in energy and infrastructure projects for quite some time, either through participating in regulatory processes, through consultation with the Crown and through other moni- toring committees that exist at an operational level, she adds. "The big difference with this advisory committee is that it's not going to be functioning at an operational, project-spe- cific level; they're really interacting with the CER at a board level, and so the recommen- dations and guidance that come out of the committee are going to be on strategic and governance matters at a high level." One complaint by Indigenous people has been their lack of participation in envi- ronmental review processes, says Matt McPherson, a partner at Olthuis Kleer Townshend LLP in Toronto. McPherson advises First Nations and Indigenous govern- ments and organizations across Canada. He says he believes the IAC's role will be relatively limited as it will be "several steps back" from the decision-making process that affects First Nations. Impact of 'new norm' on Indigenous engagement Informed, regulated entities "will likely be out in front in trying to understand where "The [Indigenous Advisory Committee] mandate will hopefully permit the [Canada Energy Regulator] to improve . . . trust and legitimacy with First Nations, the Métis Nation and Inuit in how it carries out its mandate." Scott Stoll, Aird & Berlis LLP BACKGROUNDER ON BILL C-15 The bill to implement the United Nations Declaration on the Rights of Indigenous Peoples is currently at first reading Once passed, this legislation would require the Government of Canada, in consultation and co-operation with Indigenous peoples, to: » take all measures necessary to ensure the laws of Canada are consistent with the UNDRIP » prepare and implement an action plan to achieve the UNDRIP's objectives » table an annual report on progress to align the laws of Canada and on the action plan Source: Department of Justice Canada

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