Cross-Canada Infrastructure Corridor, the Rights of Indigenous Peoples and 'Meaningful Consultation'

Perceived constraints on getting Canadian commodities to global markets have generated renewed interest in a cross-country infrastructure corridor, a concept that was initially conceived several decades ago. Consideration of the corridor concept exists in a broader context of fast-evolving jurisprudence in relation to the rights of Indigenous peoples in Canada. The Canadian legal landscape pertaining to those rights has evolved significantly in the years since the northern corridor concept was conceived, particularly with respect to Crown consultation obligations. Crown obligations in relation to the proposed corridor would be significant with respect to the rights and interests of Indigenous peoples. A cross-Canada corridor would, by its linear nature, directly and indirectly affect many diverse Indigenous communities that are situated in non-treaty, modern treaty and historical treaty contexts across the country. For example, the assessment and approval process for the Northern Gateway project involved more than 80 Indigenous communities and territories in Alberta and British Columbia, and the now-cancelled Energy East project would have crossed the traditional territory of 180 Indigenous communities on its route from Alberta to the Maritimes. Similarly, the review and approval process for the Trans Mountain Expansion project (TMX) involved at least 120 Indigenous communities along its route from the Edmonton area to Vancouver. In today’s legal context, the Crown (i.e., federal or provincial governments, or both) must consult, and in some situations accommodate, Indigenous communities in situations where the Crown has actual or constructive knowledge of the existence or potential existence of Aboriginal rights or title and contemplates conduct that might adversely affect those rights or title, such as approval of major infrastructure projects. Pursuit of the corridor project, to the extent that it involves Crown action that may adversely affect established or asserted Aboriginal rights or title, would trigger the Crown’s duty to consult, as would review and approval of specific infrastructure projects that may eventually fall within the corridor.