Canadian Lawyer

May 2021

The most widely read magazine for Canadian lawyers

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Page 29 of 43

28 LEGAL REPORT INDIGENOUS LAW (and to date only) jurisdiction in Canada to implement UNDRIP — which the Truth and Reconciliation Commission has confirmed as the framework for reconciliation — in passing the B.C. Declaration on the Rights of Indigenous Peoples Act in November 2019. Some concern lingers over the practi- calities of implementing UNDRIP across Canada from coast to coast to coast. Thomas Isaac, a partner at Cassels Brock & Blackwell LLP in Vancouver specializing in Aboriginal law, says UNDRIP contains approximately 74 paragraphs that do not align with Canadian law. He also points out that UNDRIP doesn't contain any term around Aboriginal title and "The position of many First Nations is that they have been doing almost all the compromising . . . and would now like the Crown and proponents to start doing compromising themselves." Matt McPherson, Olthuis Kleer Townshend LLP the CER is going," says Stoll. "You will see better applications and evidence coming forth demon- strating Indigenous involvement as an integral component of the design and development of major projects and infrastructure at the onset, rather than a stakeholder engagement require- ment completed for regulatory applications." In the short term, he says, it may be harder to get projects approved "as people try to under- stand the boundaries of what is acceptable." In the longer term, though, the "new norm" estab- lished by the CER and its Indigenous Advisory Committee "will likely mean shorter approval processes . . . with better acceptance and, there- fore, less uncertainty," he adds. Oleniuk isn't anticipating specific changes to regulatory processes. Instead, "the changes that energy and infrastructure developers in Canada are mostly going to be experiencing are how their processes will be changed to incorporate UNDRIP," including the permit- ting and tribunal processes. The implementation of UNDRIP across Canada The UN adopted the UNDRIP in 2007, with 143 member states voting in favour of it. The Canadian government introduced Bill C-15 on Dec. 3, 2020, as the first step in adopting it. If the government passes the bill, it would require the Government of Canada, in consul- tation and co-operation with Indigenous peoples, to take all necessary measures to ensure that Canada's laws are consistent with Indigenous peoples' rights set out in UNDRIP. The bill would also require the government to develop an action plan to achieve its objec- tives. British Columbia became the first ROLE OF THE CANADA ENERGY REGULATOR'S INDIGENOUS ADVISORY COMMITTEE Contribute strategic advice and perspective on how the CER can make meaningful progress toward reconciliation in Canada Promote opportunities for systemic change through building and strengthening new relationships with the CER's board of directors and staff Leverage their experience with the energy or natural resource sector in providing advice Share Indigenous values and teachings as a respected voice of their communities, and integrate Indigenous perspectives into the CER's strategies, plans and actions Source: Department of Justice Canada

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