On May 17, 2016, the federal government announced the appointment of Kim Baird, Annette Trimbee and Tony Penikett to a ministerial panel mandated to collect input from stakeholders, with a focus on Indigenous groups, on the proposed Trans Mountain Pipeline Expansion (TMX) project.
Terms of reference for the panel include:
- review and consider input from the public via an on-line portal
- meet with local stakeholder representatives in communities along the pipeline and shipping route
- meet with Indigenous groups who wish to share their views with the panel
The mandate for the panel is clear that its work is not a substitute for ongoing federal consultation and sets a deadline of November 1, 2016 for delivery of its report, which will be made public. This deadline is consistent with the federal government's target of December 2016 for a decision on the TMX project.
The three panelists, whose biographies can be found here, are all familiar with various aspects of Aboriginal rights and reconciliation in Canada. British Columbians will be most familiar with Kim Baird, who was a six-term elected Chief of the Tsawwassen First Nation and was in office for the negotiation, finalization and implementation of the Tsawwassen Treaty, British Columbia's first modern urban treaty.
On its face, the panel is another tool for the federal government to engage Aboriginal stakeholders in respect of the TMX project. However, it is important to note that the panel is not tasked with assessing whether the free, prior and informed consent ("FPIC") of Indigenous communities along the pipeline corridor has been achieved. In fact, the federal government refers only to consultation and accommodation: "Indigenous peoples will be meaningfully consulted, and where appropriate, impacts on their rights and interests will be accommodated."
As discussed in our earlier blog post regarding the federal government's commitment to implement the United Nations Declaration on the Rights of Indigenous People (UNDRIP), successful implementation of UNDRIP will require the federal government to reconcile the Canadian law of consultation with the international concept of FPIC. Given that FPIC does not feature prominently (or at all) in the federal government's recent material on pipeline reviews, Indigenous communities should be prepared to bring Canada's international commitments to the table and insist on a robust discussion of the role of FPIC in current and future project development.
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