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| Naomi Sayers |
First, the Act appears to manage so-called national interest concerns by advisory mechanisms. This misses the point. Section 35 of the Constitution Act, 1982 recognizes and affirms Aboriginal and treaty rights.
The Supreme Court of Canada has been clear: the duty to consult and accommodate rests with the Crown. It cannot be delegated away (Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73). While third parties cannot be liable for the constitutional duty to consult and accommodate, and this duty always rests with the Crown, it appears with the advisory mechanisms that Canada is doing just that — delegating its constitutional duty under the guise of Indigenous input through the advisory council.
This is not to say that the members of the first rendition of this council intend to displace this constitutional duty. However, questions around their role and how their decisions are implemented remain. The foundation of the duty in the Crown’s honour and the goal of reconciliation imply that the duty arises when the Crown has real or constructive knowledge of the potential existence of this constitutional right or title and contemplates conduct that might adversely affect it. The Building Canada Act cannot displace this duty through its advisory mechanisms.
Second, by asking whether the Indigenous Advisory Council is doing enough, the framing subtly shifts responsibility from the Crown to Indigenous people themselves to manage and oversee this constitutional duty. That is not reconciliation.
Canada’s highest court reiterated this principle when it stated that even if delegation does occur to, for example, a regulatory body, that where the Crown relies on the processes of a regulatory body to fulfill its duty in whole or in part, it should be made clear to affected Indigenous groups when the Crown is relying on that body’s process (Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40). Guidance about the form of the consultation process should be provided so that Indigenous people know how consultation will be carried out to allow for their effective participation and, if necessary, permit them to raise concerns with the proposed form of the consultations in a timely manner.
Third, the Act’s Major Projects Office was marketed as a streamlining tool, and a way to accelerate major project approvals, at an attempt to reduce duplication. But Canadian case law shows that efficiency cannot override constitutional obligations.
The court went on to further state about regulatory bodies managing the consultation process that the body should be well situated to oversee consultations and use its technical expertise to assess what forms of accommodations might be available (Clyde River (Hamlet)). However, later decisions from this same court recognized the independence of regulatory bodies and affirmed that they do not owe Indigenous people’s a heightened degree of procedural fairness, relying on the independence of these quasi-judicial bodies.
The risk with using a separate body like the Major Projects Office raises questions about its role and expertise in overseeing these projects and its impact on the substantive and procedural impacts on the duty to consult and accommodate under s. 35 in the Constitution. It appears that the Major Projects Offices risks acting as a gatekeeper that prioritizes approvals and timelines over constitutional obligations, undermining reconciliation in practice. While regulatory processes may assist, they cannot replace the Crown’s duty. Even if the court stressed that when the Crown relies on regulatory bodies, it must make this reliance clear and ensure Indigenous groups can effectively participate.
Fourth, by relying on advisory mechanisms, the Building Canada Act risks delegating away constitutional obligations under the guise of input. The Indigenous Advisory Council established under the Act has no binding authority. It can provide advice, but it cannot veto or enforce decisions. This is the hallmark of tokenism: government can claim to have listened while retaining full control. When a project is approved and fast-tracked, at what point does the consultation and accommodation process begin and end?
Framing the issue as whether the Indigenous Advisory Council is doing enough subtly shifts responsibility from the Crown to Indigenous Peoples themselves. That is not reconciliation — it is tokenism. This is not to say the members are tokens, but the process adopts a tokenism approach, undermining reconciliation and Canada’s constitutional duties. Further, advisory councils without binding authority replicate the illusion of participation while ensuring government retains full control.
True reconciliation requires more.
In the end, the Major Projects Office prioritizes efficiency and approvals. Concerns about the Major Projects Office are not only Indigenous concerns — they are constitutional, legal and environmental concerns. The Supreme Court has repeatedly emphasized that reconciliation is the fundamental purpose of s. 35. The reconciliation of Indigenous and non-Indigenous Canadians in a mutually respectful long-term relationship is the grand purpose of s. 35 of the Constitution Act, 1982 (Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53). To frame Indigenous voices as merely advisory is to misunderstand the law itself. Reconciliation demands authority, not token input.
The right question is not whether the Indigenous Advisory Council is doing enough. The real question is whether Canada is doing enough to uphold its constitutional obligations and reconciliation commitments. Accelerated approvals at the risk of meaningful consultation undermine reconciliation and constitutional protections.
The Truth and Reconciliation Commission’s Calls to Action require governments to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). UNDRIP requires free, prior and informed consent before projects proceed on Indigenous lands. An advisory role falls well short of this standard.
The Supreme Court has repeatedly affirmed that reconciliation is the fundamental purpose of s. 35. To reduce Indigenous voices to advisory status is to misunderstand the law itself. Reconciliation demands authority, not token input.
The real question is not whether the Indigenous Advisory Council or the Major Projects Office is doing enough. The question is whether Canada is doing enough to uphold its constitutional and reconciliation commitments.
Until Indigenous jurisdiction is respected as authoritative, as opposed to advisory, Canada will continue to fall short of the standards set by its own courts, the TRC’s Calls to Action and UNDRIP.
Naomi Sayers is an Indigenous lawyer from the Garden River First Nation with her own public law practice. She sometimes teaches primarily on Indigenous rights and governance issues. She tweets under the moniker @kwetoday.
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