The Supreme Court has confirmed that Indigenous nations do not have the right to veto resource development projects. This is the upshot of two separate rulings released Wednesday.
That is good news for proponents of oil and gas pipelines such as the controversial Kinder Morgan project in British Columbia.
It is bad news for those who had hoped that Indigenous resistance would be sufficient to derail such projects, including pipelines designed to move heavy oil from Alberta to tidewater.
The two decisions are particularly important in that they provide a road map for resource companies and their regulators on how to organize proposed projects in a way that passes legal muster.
At the heart of this is the fact treaties signed between Indigenous nations and the Crown are part of Canada’s constitution. The courts have long held that this alone requires the government to consult with First Nations before authorizing projects that could affect treaty rights.
What hasn’t been entirely clear is what consultation requires. Is it a weak requirement that means Indigenous views, like those of environmentalists, must be taken into account by government before a final decision is made?
Or is it a strong requirement that means affected Indigenous nations must give their consent before a resource project like a pipeline can go ahead?
This week, the top court, came down firmly against the latter interpretation.