‘Very much an open question’: Carney’s West Coast pipeline project could run into legal pitfalls

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“However, if a project is designated as an (National Interest) Project and faces Indigenous opposition, there is a risk a court will find that Crown consultation prior to designation of the (National Interest) Project was inadequate,” the report added.

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Dwight Newman, professor of law at the University of Saskatchewan, said there is ample case law about the duty to consult, which the courts have made clear does not give Indigenous communities final say on whether a project moves forward.

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However, the federally legislated UNDRIP has added an extra layer of uncertainty, which was first passed by the federal government in 2021. This is because UNDRIP includes Free, Prior and Informed Consent (FPIC), which allows Indigenous communities to say no to a project development.

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Justice Minister Sean Fraser told reporters last year that UNDRIP does not allow “a blanket veto power” to Indigenous communities, but later apologized for his comments after criticism, noting that speaking about UNDRIP in that way makes an assumption that Indigenous people and the federal government are working against each other.

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Newman said the federally legislated UNDRIP does not go as far as the one in British Columbia, where it has become an provincial election issue, but is still having an impact on case law across the country.

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Newman said a recent Federal Court of Appeal decision last Friday, in the case of Canadian Nuclear Laboratories and the Kebaowek First Nation in Quebec, has determined that UNDRIP does not change the duty to consult.

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“The lower court in that case had said that the duty to consult turned into free, prior, and informed consent because Canada adopted the UN Declaration Act, and the Federal Court of Appeal has overturned that reasoning, and they’ve said the duty to consult doctrine hasn’t changed,” said Newman.

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However, the case could go to the Supreme Court of Canada, which means the issues surrounding UNDRIP are not finalized.

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Junger said it’s hard to say how UNDRIP will court challenges going forward.

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“Is the federal government going to rescind the UNDRIP Act, or is it going 60 miles an hour into a brick wall?”

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“Or am I wrong? Those are all possibilities, but they are the possibilities, and that’s separate from the duty to consult,” he added.

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Newman, like Junger, noted that the court challenges could also come in the initial phase of consultations that took place prior to the national interest designation.

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Heather Exner-Pirot, senior fellow at the Macdonald-Laurier Institute, said the federal government would have already run a risk assessment on the likelihood of court challenges facing the project and are preparing accordingly.

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“I think everyone knew that there would be court challenges,” she said. “I think it was anticipated, and they prepared for it, especially on the designation process.”

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Last week, Major Projects Office CEO Dawn Farrell had a candid moment with the BC Assembly of First Nations, noting that the frustrations over lack of consultations on the Pacific Link project made her feel “like Canada is never going to work” according to a report by the Canadian Press.

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Farrell said members of her team had “very, very big scars” while working on the Trans Mountain Expansion Project.

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“The projects that we have to deliver out of our office have to achieve your rights. We have to make sure that we go through your processes,” Farrell said.