Aligning Energy Development with the Interests of Aboriginal Peoples in Canada

Abstract

Canada’s economic future is dependent upon energy and natural resource development, and has therefore become inextricably linked to the rights and interests of Canada’s Aboriginal peoples. These rights and interests include the desire to continue with their traditional ways of livelihood, to protect their many cultures and the environment, the need to foster healthy and thriving communities, and the opportunity to participate in and benefit from development on their traditional lands. In Canada, the rights of Aboriginal people are constitutionally protected. However, despite considerable advancements in domestic law on consultation and accommodation, growing unrest and dissatisfaction among Canada’s Aboriginal peoples prevails.

Significant progress in international human rights law and international norms lend support to Indigenous aspirations and are creating pressure on energy and natural resource developers to embrace change and move beyond the consultation requirements under domestic law to obtaining the consent of Aboriginal communities to development on their traditional lands. This article posits that the willingness of Aboriginal communities to constructively engage with industry and consent to natural resource and energy development on their traditional lands can be facilitated by aligning the interests of the affected Aboriginal communities with those of project proponents through the proactive creation of thoughtful and innovative commercial relationships. These relationships can be structured to create value for the proponent while providing meaningful economic participation for the affected Aboriginal community by utilizing a combination of passive resource revenues, employment and procurement opportunities and direct equity participation in the development.