Iacobucci articles stress building ties with Indigenous

EDMONTON • Frank Iacobucci, the former Supreme Court justice whom the federal government tapped Wednesday to redo the consultation with First Nations on the Trans Mountain pipeline expansion, has a history of writing about Indigenous consultation and consent, providing potential insight into his views and approach to the process.

“Proponents seeking to develop large energy, infrastructure, and mining projects in Canada face significant uncertainty regarding the future requirements for engaging with Indigenous peoples,” Iacobucci, now counsel at the law firm Torys, wrote in an April report co-authored with three Torys partners and published on the firm’s website.

At the end of August, the Federal Court of Appeal said Canada had failed to adequately consult Indigenous people on the expansion project, throwing its future into turmoil. On Wednesday, Amarjeet Sohi, the natural resources minister and an Edmonton member of Parliament, announced a handful of steps to drive the project, including Iacobucci’s review.

In the April paper, Iacobucci and company offer an assessment of how to insulate projects from future requirements that may retroactively quash the consultative efforts industry and government have made. “Moreover, waiting for the requirements to crystallize is often not a feasible option given most projects’ schedules,” they say.

The starting point in engaging with Indigenous people must be a better understanding of history and culture, the paper says. It’s a foundation: “In short, better understanding gives a proponent a perspective and starting point for engagement.”

Relationship-building, they write, will help cushion the blows from bumps that arise along the path to the consultation’s completion — like, perhaps, a Federal Court ruling — and get things back on track. “Such a relationship can ultimately be the difference between a project proceeding or going sideways when a future engagement requirement or issue arises that was not initially contemplated,” the paper says.

Lastly, Iacobucci and company posit, “interestbased dialogue” is necessary. “Without such a dialogue, it seems increasingly unlikely that projects — especially contentious ones — will achieve the support of potentially affected Indigenous peoples and thereby avoid protracted litigation,” the paper says.

Iacobucci has previously argued that Canada’s relationship with Indigenous peoples has been marked by “a lack of respect and trust,” which must be earned back over time.