JFK Law LLP proudly highlights the legal insights of our Managing Partner, Sara Mainville, featured in an interview with the Narwhal. In the article, Mainville champions Indigenous rights amidst a wave of legislative initiatives, such as British Columbia’s Bill 15, Ontario’s Bill 5, and the Federal Government’s Bill C-5, aimed at fast-tracking project assessments and approvals.
In Ontario, Bill 5 proposes to create “special economic zones” where provincial laws may be suspended to fast-track industrial development. In BC, Bill 15, the Infrastructure Projects Act, grants the province authority to designate infrastructure projects as “provincially significant” and subject to a prioritized regulatory review. Similarly, Bill C-5, An Act to enact the Free Trade and Labour Mobility in Canada Act and the Building Canada Act, establishes a process to designate projects as “in the national interest” which are subject to a streamlined review process.
Indigenous leaders have significant concerns that these legislative initiatives will sideline Indigenous consultation and fail to meaningfully consider adverse impacts to constitutionally protected Aboriginal and Treaty Rights. The duty to consult is a constitutional imperative derived from section 35 of the Constitution Act, 1982, which recognizes and affirms Aboriginal and Treaty Rights of First Nations, Inuit and Métis. The Crown’s duty to consult is triggered when contemplating decisions, such as project approvals, that may adversely affect Aboriginal and Treaty rights.
Suffice it to say, these legislation changes will be a significant step backward with respect to hard fought efforts to pass legislation, such as the United Nations Declaration on the Rights of Indigenous Peoples Act, and implement directives such as the Principles respecting the Government of Canada’s Relationship with Indigenous Peoples.
In the face of these unilateral and sweeping changes, Mainville continues to emphasize the importance of meaningful consultation and partnership with Indigenous Peoples, as affirmed by the Supreme Court’s decisions, which have consistently underscored the duty to consult and the principle of free, prior and informed consent. She stated,
“I think we should learn from the past. We should learn from all the case law. That’s what the case law was meant to do…. Judges tried to give good guidance to Crown governments on how to respect Aboriginal and Treaty Rights, before they get breached — not as they are breaching them.”
Mainville urges governments to rethink their approaches and forge stronger relationships with Indigenous communities. While there is divergent opinion on the case law with respect to the Crown’s legal duty to consult Indigenous peoples on proposed legislation, Mainville contends “there’s importance in talking to First Nations when changing legislation… There has to be a reasonable process going forward.”
To give any meaning to political statements about reconciliation and upholding Indigenous rights, especially in the context of these Bills, Indigenous communities must be placed in the “driver’s seat” with respect to project designations and approvals that may impact their lands and rights. If not, we are doomed to repeat past patterns of conflict, protests, and court battles that only serve to erode trust between Indigenous peoples and the Crown and undermine the Crown’s aim of efficient and expedient project approvals.
Mainville’s call to action is clear: governments must rethink these legislative initiatives and meaningfully engage Indigenous peoples to develop new approaches. She advocates for legislative frameworks that respect and uphold the constitutional rights of Indigenous peoples, ensuring that their voices are not only heard but are pivotal in shaping policies that affect their communities.
JFK Law celebrates Sara Mainville’s legal acumen and her unwavering commitment to ensuring that Indigenous communities are respected and consulted in decisions that impact their lands and rights. Her work serves as a reminder that true reconciliation requires not only acknowledgment of past injustices but also proactive measures to ensure that Indigenous communities are full partners in shaping their futures. We are honored to have her as a part of our team and look forward to her continued contributions to the advancement of Indigenous Rights in Canada.
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References:
Can Canada’s fast-tracking laws avoid the mistakes of the past?
United Nations Declaration on the Rights of Indigenous Peoples Act
Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples