Who Decides? Balancing and Bridging Local, Indigenous and Broader Societal Interests in Canadian Energy Decision-Making

1. Introduction

Traditionally most decisions relating to the energy system have been in the hands of provincial or federal authorities. However a number of trends point to a growing authority on the part of municipal governments and Indigenous governments. These trends include: widespread use of negotiated impact benefit agreements for energy infrastructure between local governments and proponents; implementation of co-management structures for land use planning and resource development; recent jurisprudence reinforcing inherent jurisdiction of First Nations on lands with Aboriginal title; and, a lack of public confidence in energy development leading some municipal and Indigenous authorities to assert an intent to regulate cross-border energy infrastructure within their borders. In the face of growing authority of municipal and Indigenous authority the question of “who decides” when it comes to energy policy-making, planning, regulation and assessments of individual projects is a major new stress point in the energy decision-making system.

This article outlines the dimensions of this “who decides?” question from a number of perspectives including the constitutional and legal landscape, public interest complexities and examples of distributed decision-making involving municipal and Indigenous authorities. Throughout the text some challenging issues are highlighted along with recommendations to meet these challenges formulated by the Positive Energy research team in consultation with senior leaders from government, industry, Indigenous interests and ENGOs. The article draws on a workshop “Who Decides? Balancing and Bridging Local and Higher-Order Interests in Canadian Energy Decision Making” held March 20 and 21, 2017 at the University of Ottawa.1

There are two key terms used throughout this article that deserve early comment. I refer to municipal and Indigenous authorities. This is terminology used throughout the Positive Energy project to refer to policymakers (elected government officials and the public service implementing policy direction) and regulators. In the municipal and Indigenous context, authorities essentially means municipal and Indigenous elected officials and staff. Thus, to be clear, community groups, NGOs, industry proponents and other actors – whilst very important – are not authorities. The second key term is the energy decision-making system. This term refers to a system of multiple parts including energy policymakers, energy regulators and planning activities, all of which are influenced and bound by the physical and market realities of energy.2

2. Dimensions of the “Who Decides?” question

2.1 Constitutional and legal landscape

The legal divisions of government authority over energy matters in Canada are set in Canada’s founding documents. The Constitution Act, 18673 and amendments in 19824 stipulate that provinces enact laws related to developing energy resources, but that the federal government has explicit jurisdiction over interprovincial works (i.e., pipelines and international power lines) and has significant “residual power” under its constitutional responsibility for “peace, order and good government” to enact policy relating to energy matters.5 Local and municipal governments are created under provincial law and their legal authority is typically restricted to local land-use by-laws influencing proposed locations for energy infrastructure. Indigenous government authority is more flexible and varied across the country and depending on circumstance, Indigenous governments may operate with the same powers as municipal or provincial governments on reserve lands and other territory.6 Table 1 provides a summary of some of the federal and provincial powers over energy matters. Municipal and Indigenous roles are taken up later in the document.

Table 1 – Examples of federal and provincial powers over energy matters

FederalProvincial
Interprovincial works (pipelines) and international power lines

(Section 92A. Constitution Act)

Nuclear power regulation

Energy development offshore and on frontier lands
Non-renewable natural resource exploration, development, management

Electricity generation development, conservation and management

(Section 92A. Constitution Act)
Powers related to energy markets from jurisdiction over interprovincial and international trade and commerce (including foreign investment), international treatymaking, taxationWide powers from environmental regulation to energy distribution to standards relating to buildings and energy using equipment
Regulation of environmental impacts of energy development on Canada’s fisheries (Fisheries Act7); Species at Risk (Species at Risk Act8); and more generally Canadian Environmental Assessment Act9, Canadian Environmental Protection Act10(Section 92.13 Constitution Act “Property and Civil Rights”)

The contours of overlapping jurisdictions between federal, provincial, Indigenous and municipal authorities are evolving. Jurisdiction over energy decision-making, particularly over the siting of energy infrastructure, is often tested and new influences, including international legal influences, are emerging. Several recent legal rulings and ongoing situations are worth highlighting:

  • Validity of social acceptability as reason to deny energy project approval : In June 2017, following a challenge by Strateco Resources Inc, the Superior Court of Québec upheld the government’s refusal to grant uranium exploration permits for reasons of lack of sufficient social acceptability. The province issued a uranium mining moratorium in 2013 and directed its Bureau d’audiences publiques sur l’environnement (BAPE) to conduct a “generic” environmental review on uranium industry issues in Québec. The BAPE recommended to continue with the moratorium. The BAPE recommendation was criticized by the federal nuclear regulator CNSC who regulate and license uranium mines. Strateco contends Québec’s decision was made outside of a legal framework.11
  • Constitutional requirements to meaningfully consult Indigenous groups overturns federal approval of Northern Gateway pipeline: The Constitution Act, 1982 Section 35 recognizes and affirms Aboriginal rights. This places a high standard for consultation on the federal government. In June 2016, the Federal Court of Appeal ruled that Canada’s efforts were insufficient during the assessment process for the Northern Gateway Pipeline. This overturned the federal decision to approve the project.12
  • Proper justification required before provincial and federal governments can infringe Aboriginal rights and title: The 2014 Supreme Court ruling in Tsilhqot’in v British Columbia13 concerned provincially regulated forestry activity in traditional territory of the Tsilhqot’in Nation. The court set new guidelines to account for culturally sensitive evidence of past occupation and found that BC breached its duty to consult. It reaffirmed earlier jurisprudence (e.g, Delgamuukw 1997) that any provincial and federal infringement of Aboriginal title should be avoided and must pass a three part “justification test”: Did the government discharge its procedural duty to consult and accommodate?; Were the government’s actions backed by a compelling and substantial objective?; and, Is the governmental action consistent with the Crown’s fiduciary obligation to the group?14
  • Requirements for “deep” consultation: Supreme Court rulings in the summer of 2017 Clyde River (Hamlet) v. Petroleum Geo-Services15 and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc.16 have clarified requirements of “deep” consultation with Indigenous peoples who have strong claim to rights (e.g., treaty rights). The Inuit of Clyde River and the Chippewas of the Thames First Nation both sought to overturn NEB decisions on the basis of inadequate consultation. The Court agreed with appellants in Clyde River but not the Chippewas, pointing out that the former lacked several features required for meaningful consultation including: participant funding for Indigenous groups to address the evidence of the impacts of the activity before the NEB; oral hearings; inquiry into the specific rights and impacts of the proposed activity on those rights. The decision in the Clyde River case also made clear that the Crown can rely on steps undertaken by a regulatory agency, such as the NEB, to fulfil its duty to consult. This has been a point of some contention for some as to whether or not a regulator like the NEB can fulfil that role. The Court ruled that the NEB has sufficient procedural powers to carry out meaningful consultation but this role must be made clear to the Indigenous group(s) involved.17
  • Québec review of proposed Energy East pipeline: The proponent first refused then, in a politically charged context, later agreed to undergo an Environmental Impact Assessment and Review under the province’s Environmental Quality Act.18 This situation raises questions of the extent to which provincial legislation can and should apply to interprovincial pipelines which are regulated federally under the NEB Act.19
    In this context it is worth mentioning that approval of other non-pipeline energy projects may fall under both federal and provincial jurisdiction. For example both BC and Canada required environmental assessments for the Site C hydro-electric project in and established a Joint Review Panel in order to do this.
  • Ontario overrules King Township by-laws intended to stop gas plant: In 2010, King township passed an interim control by-law and started a process to amend its official plan to ban a 393 MW gas power plant. The provincial government exempted the plant from the provincial Planning Act20 thus removing the authority of the municipality to restrict the construction of the generation facility.21
  • Provincial green energy policy curtailed by World Trade Organization: International legal institutions can also curtail the authority of Canadian government energy authorities. Ontario has taken major steps to develop a provincial wind and solar energy industrial sector. However the province’s “local content” requirements which required a minimum made-in-Ontario content for wind and solar energy generation projects were disputed through the World Trade Organization mechanisms.22 The province was forced to drop the domestic content requirement in 2014.

2.2 Challenges and opportunities raised by growing power of municipal and Indigenous authorities

(1) The emergence of “social license” and “governments grant permits, communities grant permission” terminology in policy is a challenge from a strict legal and constitutional perspective. There are no rules or guidelines on how to apply for, or to grant, the “licence” implied by “social licence” (with the potential exception of the BAPE process in Québec). Yet, this has not stopped governments from using the terminology in public policy. For example, the New Brunswick government, placed a moratorium on hydraulic fracturing until a social licence is in place.23 The federal government came to power on a platform stating: “while governments grant permits for resource development, only communities can grant permission.”24 While few would disagree with the democratic ideal of consent of the governed, this raises prickly questions: Who speaks for communities? What about the interests of the larger national community? What happens when interests of communities clash?

Nevertheless there are benefits to the distribution of some decision-making power, especially if we restrict the discussion to distribution of decision-making power to elected authorities and staff of municipal and Indigenous communities rather than the more amorphous notion of “communities”. Participants in workshop pointed to benefits that can include: increased legitimacy of decisions at local levels; confidence-building among the parties involved; reduced “social risk” for project proponents; better projects and increased sustainability of energy infrastructure; and greater opportunities for comprehensive and integrated planning. Furthermore, Canadians appear to expect sharing of authority. Last fall our polling partner Nanos asked Canadians if they thought authority should be shared between municipal, Indigenous and federal or provincial governments when it comes to energy infrastructure projects and 68 per cent agreed (figure 1). Of course, there are also risks of confusion and delay with a system that has multiple decision-makers. Again Canadians appear to recognize and understand this. Fully 70 per cent thought the “final say” on linear infrastructure projects should rest in the hands of federal or provincial governments.

(2) Indigenous peoples rights and consent and regulatory capacity – constitutionally protected rights of Canada’s aboriginal peoples means that Indigenous peoples and communities are rights holders and not only stakeholders in energy decisions. Canada’s recent commitment25 to the UN Declaration on the Rights of Indigenous Peoples by Canada introduces into the dialogue the concept of free, prior and informed consent for resource development.26 However, the federal government has indicated it will not directly adopt the Declaration into Canadian law27 and it is uncertain how it will be applied. Jurisprudence from the Tsilhqot’in and Delgamuukw cases at the Supreme Court described above, suggest that consent is ideal but, in its absence, federal and provincial governments can infringe on Aboriginal title, provided they meet the established tests for “justification”. Yet it is important to stress that the Tsilhquot’in decision affirmed that there is inherent jurisdiction on the part of First Nations to regulate lands to which they have a strong claim of Aboriginal title. Thus the decision should also be interpreted as an opportunity to bring regulatory capacity to First Nations. Some First Nations are pursuing this. For example, the Squamish Nation has developed and implemented an independent environmental review for major projects separate from the Crown environmental assessment process. The legal authority for the process derives from a contractual agreement with project proponents and the Crown and Squamish decision-making processes are coordinated.28 This led in 2016 to the Squamish Nation issuing environmental approval for a LNG pipeline project.29 Arrangements like this appear to be generally supported by the public as half of the Canadians polled by Nanos were in favour of efforts to increase the capacity for Indigenous governments to regulate and shape energy development (figure 1).

(3) Identifying public interest(s) in the absence of national energy policy – The energy decision making system is oriented towards making decisions that are in the public interest. However, the public interest is a difficult concept, it is continually evolving and is contested. Just as there are multiple “publics”, there will be multiple public interests. Moreover, social scientists and planning theorists have criticized the notion of the public interest as a universalizing concept that denies differences in class, gender and race.30 From this perspective, the interests of Indigenous Canadians, for example are arguably too easily obscured by the presumption of one public or national interest. Despite these problems, policy-makers and planners realize that doing away with the term “public interest” would not make matters simpler. The problems inherent in defining the public interest are also intrinsic to any planning activity with the aim of generating just outcomes for a plurality of interests.31

Approaches to determining the public interest rely on the existence of shared values and common interests. However, in the absence of a national energy policy there is no clear statement of these values and interests as they relate to the energy system. This could be interpreted as a fatal flaw that may make public interest determinations more susceptible to special interests. The federal governments’ “Generation Energy”32 initiative which aims to develop goals for what Canada’s energy future should look like over the long term is a step in the direction of identifying shared values and common interests.

An additional complication is that notion of the public interest often requires an acceptance that costs and risks borne locally are for “the greater good”. This can be achieved by legally enforced direction from higher-order governments, but that arrangement is increasingly complicated for the reasons of societal change outlined by Cleland and Gattinger33 including reduced levels of trust in governments, decline in deference to expert authority and increased demands for citizen involvement in public decision-making. Workshop participants pointed to other ways in which local authorities give primacy to “the greater good” and communicate to constituents. For the latter, the role of well-written and accessible decision documents by regulators is important. Other ways in which “the greater good” is enforced include compensation and other benefits negotiated via Impact Benefit Agreements with proponents.

2.3 What does distributed decision-making look like in practice?

The preceding section made mention of the distribution of decision-making power to municipal and Indigenous authorities. What does this mean in practice? To answer this, first it may be helpful to refer to scholarship in the field of governance. The term governance is used to refer to the process of collective decision‐making and policy implementation.34 It draws attention to the role of non-government actors and networks which is important given the shift away from solely state-centred political authority.35 Furlong and Bakker36 have described two simultaneous shifts in governance: one is a delegation of decision-making power, the second refers to increased participation in decision-making of multiple parties (figure 2). This classification of governance arrangement along two axis provides a potentially fruitful way to think about some of the ways in which decision-making power is distributed in Canada. A few examples of arrangements where decision-making power has been distributed or delegated to municipal or Indigenous governments (quadrant B and D) are provided below. More examples are available in the extended version of this paper.37

In the upper right hand quadrant, we have multilevel governance. Indigenous authorities may be engaged in multilevel governance arrangements through co-management of natural resources. The term co-management is described by natural resource scholars as an arrangement of shared management, decision-making, and responsibility between the state and non-state parties, the latter usually being local resource users.39 There are a number of examples including the Comité d’examen des répercussions sur l’environnement (COMEX) which is a review body established under the James Bay and Northern Quebec Agreement, signed by the government of Quebec, Hydro‑Québec and the Grand Council of the Cree of Quebec. The committee is composed of Québec government appointed members and Cree Nation appointed members, it is responsible for conducting environmental and social assessment of proposed infrastructure (e.g., mining, road, electricity) in the James Bay region.40 The Mackenzie Valley Review Board (MVEIRB) is another example. It is a regulatory body in the Northwest Territories (NWT) that carries out environmental impact assessments and reviews in the Mackenzie Valley for non-renewable resource development. Half of the Board members are from Indigenous peoples, the remaining from federal and territorial governments.41 A final example is community energy planning overseen by municipalities and including things like provision of retrofit programs; district energy investment; and energy labelling and conservation initiatives in municipally owned buildings. Often these initiatives access provincial or federal programs while the municipal government tends to be the final decision maker.

In the lower right quadrant, we have delegated governance. Examples here include the Nuclear Waste Management Organization. The federal government chose in 2002 to require Canada’s nuclear energy corporations to fund, construct and operate a long term waste management facility. This mix of crown and private corporations established the Nuclear Waste Management Organization (NWMO). The NWMO is responsible for designing and implementing Canada’s plan for the safe, long-term management of used nuclear fuel. The federal government has an oversight function but has delegated the selection process for a waste repository to the NWMO.42 The selection process extensively involves elected authorities from potential host communities as well as other community members and requires that the host is both willing and informed. Thus there are multiple actors holding decision-making roles (federal government, NWMO, host communities) and extensive participation opportunities. Another potential example is the First Nations Land Management Regime which transfers authority for land administration on reserve land from the federal to First Nation governments.43

3. Recommendations to policy-makers

The question of “who decides?” and the role of municipal and Indigenous authorities in the Canadian energy decision making system is complex and dynamic. Legal and constitutional divisions of power are key considerations but evolving jurisprudence and governance trends mean that there are a diversity of roles for local and Indigenous governments. The following recommendations are targeted at federal and provincial policy-makers and regulators. They were formulated by the Positive Energy team in consultation with senior leaders from government, regulators, industry, Indigenous interests and ENGOs.

Energy development and investment requires reasonably efficient and timely decisions as well as a certain amount of predictability. The trend to have more actors involved in decision-making makes it more complicated to achieve this. Significant coordination and cooperation efforts are needed not only for the sake of efficiency, but also to ensure a balance between local and broader societal interests. The recommendations are oriented in this direction.

1. Recognize and encourage distributed decision-making while reaffirming a prominent role for federal / provincial / territorial authorities

  1. Recognize that whether intentionally through formal co-management arrangements, or through the more ad hoc Impact Benefit Agreements / host-community agreements, the power of Indigenous and municipal governments has been elevated in the energy decision making system.
  2. Encourage the benefits that can arise through this distribution and decentralization of decision-making authority. Benefits include: increased legitimacy of decisions at local levels; confidence- building among the parties involved; reduced “social risk” for project proponents; better projects and increased sustainability of energy infrastructure; and greater opportunities for comprehensive and integrated planning.
  3. Reaffirm and support the prominent role for federal / provincial / territorial authorities
    1. For linear energy infrastructure, provincial (within province) and federal (across provinces / international borders) authorities need to play prominent roles. This includes retaining ultimate authority to decide whether infrastructure is in the broad public interest. In other words, seek decision-making arrangements that are traditional, or consultative, or multi-level.
    2. For non-linear energy infrastructure, provincial / federal / territorial authorities also need to play prominent roles and retain authority to decide whether infrastructure is in the public interest. However, there is potentially more opportunity for more distributed decision-making arrangements: i.e., traditional, consultative, multi-level or delegated.
    3. For all types of energy infrastructure as well as for policy, planning and the development and implementation of regulation, explore greater use of formal co-management bodies that share authority among federal / provincial / territorial governments and collections of Indigenous or municipal governments. Draw on existing experiences.
    4. Explicitly identify Indigenous governments that are proximate to linear infrastructure and need to be engaged. This will reduce burden on Indigenous governments and on proponents.
    5. Play a coordinating role by supporting capacity building (recommendation 2) and connecting planning efforts (recommendation 3).

2. Support capacity building efforts for municipal and Indigenous governments

  1. Promote coordination and cooperation to find economies of scale as Indigenous governments take on environmental assessment activities in their territories.
  2. Consider establishing an expert body to build technical capacity (planning, finance, safety, regulatory process principles) within Indigenous and municipal governments. Draw on existing experiences like QUEST’s Community Energy Planning program, Catalyst 2020 program and others.
  3. Develop executive / personnel exchanges between industry, regulators, policy-makers, Indigenous governments and municipal governments. This will strengthen leadership competencies; increase awareness of historical context and cultures, organizational / technical / investment constraints and imperatives; and, lead to better relationships.
  4. Explore funding sources for capacity building. Potential sources include government, industry, and foundations (e.g., philanthropic foundations, community foundations).

3. Elevate prominence of energy in land use planning

  1. Work towards better integration of energy issues in the land use planning system. Build regional, provincial and federal energy policy goals or energy plans into the existing medium and long term planning tools (e.g., planning acts, provincial policy statements, regional and strategic impact assessment processes).
  2. Federal and provincial support for community energy planning through for example: provision of energy and GHG data, maintain federal gas tax agreement; mandated energy targets.
  3. Review the First Nations Land Management Regime program with a focus on increasing opportunities for First Nations to control land use decisions within their territories
  4. Track and monitor the content of IBAs to: avoid duplication in meeting regional priorities for infrastructure and development; identify best practices; and reduce transaction costs.

4. Aim for predictability, efficiency and a climate that fosters innovation, investment and competitiveness

  1. Predictability and efficiency of the energy decision making system should be a goal of any reforms. The above recommendations to improve planning and build capacity within municipal and Indigenous governments can help in this direction. Decision systems must also foster innovation, investment and competitiveness.

* Note – this article is the second in a series published in ERQ on findings from the University of Ottawa’s Positive Energy project. The first overview article from Michael Cleland and Monica Gattinger was published in the December 2017 Volume 5 Issue 4 titled “System Under Stress: Energy Decision-Making in Canada and the Need for Informed Reform”. An extended version of the current article is available at <http://www.uottawa.ca/positive-energy/>.

** Dr. Stewart Fast is a Senior Research Associate for the University of Ottawa’s Positive Energy project.

  1. An agenda including list of participants, speaker presentations and “what we heard” report from this workshop is available online: <http://www.uottawa.ca/positive-energy/who-decides-balancing-and-bridging-local-and-higher-order-interests-canadian-energy-decision-making>.
  2. For more on the energy decision making system see the overview article in the last issue of ERQ: Michael Cleland & Monica Gattinger, “System under Stress: Energy Decision Making in Canada and the need for Informed reform” (2017) 5:4 ERQ 11, online : <http://www.energyregulationquarterly.ca/articles/system-under-stress-energy-decision-making-in-canada-and-the-need-for-informed-reform>.
  3. Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 92A, reprinted in RSC 1985, App II, No 5.
  4. Canada Act, 1982 (UK), 1982, c 11.
  5. Brenda Heelan Powell, Environmental Assessment & the Canadian Constitution: Substitution and Equivalency (Edmonton: Alberta Law Foundation, 2014); James John Guy, People, politics and government: a Canadian perspective, 7th ed (Toronto: Pearson Canada, 2009).
  6. Natural Resources Canada “Roles and Responsibilities of Governments in Natural Resources” (2016), online: <https://www.nrcan.gc.ca/mining-materials/taxation/8882 Accessed December 15, 2016>.
  7. Fisheries Act, RSC 1985, c F-14.
  8. Species at Risk Act, SC 2002, c 29.
  9. Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52.
  10. Canadian Environmental Protection Act, 1999, SC 1999, c 33.
  11. Strateco Resources, Press Release, “Litigation Against the Quebec Government: Strateco Adds $10 Million in Punitive Damages to its Original $190 Million Claim” (24 February 2016); Damon van der Linde, “Petition blocks uranium plans in Quebec” Montreal Gazette (15 December 2016).
  12. Mandell Pinder LLP, “Gitxaala Nation v Canada, 2016 FCA 187 – Case Summary” (5 July 2016), online: <http://www.mandellpinder.com/gitxaala-nation-v-canada-2016-fca-187-case-summary>.
  13. Tsilhqot’in Nation v British Columbia, 2014 SCC 44, [2014] 2 SCR 257.
  14. Robin M Junger et al,“Supreme Court declares Aboriginal title in Tsilhqot’in Nation v. British Columbia” (2014) Aboriginal Law Bulletin, online: <http://mcmillan.ca/Supreme-Court-declares-Aboriginal-title-in-Tsilhqotin-Nation-v-British-Columbia>.
  15. Clyde River (Hamlet) v Petroleum GeoServices Inc, 2017 SCC 40.
  16. Chippewas of the Thames First Nation v Enbridge Pipelines Inc, 2017 SCC 41.
  17. Mandell Pinder LLP, “Clyde River (Hamlet) v Petroleum Geo‑Services Inc., 2017 SCC 40 and Chippewas of the Thames First Nation v Enbridge Pipelines Inc., 2017 SCC 41 – Case Summaries” (10 August 2017), online: <http://www.mandellpinder.com/clyde-river-and-chippewas-of-the-thames/>; Nader R. Hasan & Justin Safayeni, “Supreme Court of Canada offers important guidance for Indigenous groups on the Crown’s duty to consult” (2017), online: <https://www.linkedin.com/pulse/supreme-court-canada-offers-important-guidance-groups-justin-safayeni>.
  18. Environment Quality Act, CQLR c Q-2.
  19. Daniel Gralnick, “Constitutional Implications of Quebec’s Review of Energy East” (2016) 4:3 Energy Regulation Quarterly, online: <http://www.energyregulationquarterly.ca/articles/repercussions-constitutionnelles-de-lexamen-du-projet-energie-est-par-le-quebec#sthash.9vGk5hLb.dpbs>.
  20. Planning Act, RSO 1990, c P.13.
  21. Stephen Bird, Gas-fired Power Facilities Case Study Oakville and King Township Ontario (Ottawa: Canada West Foundation and University of Ottawa, 2016).
  22. Canada – Certain Measures Affecting The Renewable Energy Generation Sector (2014), WTO Docs WT/ DS412/19, WT/ DS426/19, online: <https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds412_e.htm>.
  23. Government of New Brunswick, Press Release, “Moratorium on hydraulic fracturing to continue indefinitely” (27 May 2016), online: < http://www2.gnb.ca/content/gnb/en/news/news_release.2016.05.0462.html>.
  24. Liberal Party of Canada, “Environmental Assessments”, online: <https://www.liberal.ca/realchange/environmental-assessments/>.
  25. Government of Canada, News Release, “Canada Becomes a Full Supporter of the United Nations Declaration on the Rights of Indigenous Peoples” (10 May 2016), online: <https://www.canada.ca/en/indigenous-northern-affairs/news/2016/05/canada-becomes-a-full-supporter-of-the-united-nations-declaration-on-the-rights-of-indigenous-peoples.html>.
  26. United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UNAGOR, 2007, UN Doc A/61/L.67, s 32.2.
  27. James Munson, “Ottawa won’t adopt UNDRIP directly into Canadian law: Wilson-Raybould” IPolitics (12 July 2016), online: <https://ipolitics.ca/2016/07/12/ottawa-wont-adopt-undrip-directly-into-canadian-law-wilson-raybould/>.
  28. Aaron Bruce & Emma Hume, “The Squamish Nation Assessment Process: Getting to Consent” Ratcliff & Company LLP (November 2015), online: <http://www.ratcliff.com/sites/default/files/publications/The%20Squamish%20Nation%20Process.%20Getting%20to%20Consent%20A%20Bruce%20and%20E%20Hume%20November%202015%20%2801150307%29.PDF>.
  29. Fortis BC, News Release, “FortisBC receives Environmental Certificate from Squamish Nation for Eagle Mountain Woodfibre Gas Pipeline” (27 June 2016), online: <https://www.fortisbc.com/MediaCentre/NewsReleases/2016/Pages/Project-update-FortisBC-receives-Environmental-Certificate-from-Squamish-Nation-for-Eagle-Mountain-Woodfibre-Gas-Pipeline.aspx>.
  30. Heather Campbell & Robert Marshall, “Utilitarianism’s Bad Breath? A Re-Evaluation of the Public Interest Justification for Planning” (2002) 1:2 Planning Theory 163.
  31. Mick Lennon, “On ‘the subject’ of planning’s public interest” (2016) 16:2 Planning Theory 150.
  32. Natural Resources Canada, “Generation Energy” (2018), online: <http://www.nrcan.gc.ca/20093>.
  33. Michael Cleland & Monica Gattinger, System under Stress: Energy Decision Making in Canada and the need for Informed reform (Ottawa: Positive Energy, 2017).
  34. Iain McLean & Alistair McMilan, The Concise Oxford Dictionary of Politics, 3rd ed (Oxford University Press, 2009) sub verbo “governance”.
  35. Grace Skogstad, “Legitimacy and/or policy effectiveness?: network governance and GMO regulation in the European Union” (2003) 10:3 Journal of European Public Policy 321.
  36. Kathryn Furlong & Karen Bakker, “The Contradictions in ‘Alternative’ Service Delivery: Governance, Business Models, and Sustainability in Municipal Water Supply” (2010) 28:2 Environment and Planning C: Politics and Space 349.
  37. Stewart Fast, Who Decides? Balancing and Bridging Local, Indigenous and Broader Societal Interests in Canadian Energy Decision-Making. System Under Stress – Interim Report #1 (Ottawa: Positive Energy, 2017), online: <http://www.uottawa.ca/positiveenergy/sites/www.uottawa.ca.positive-energy/files/positive_energy-who_decides_dec_2017.pdf>.
  38. Supra note 36.
  39. Lars Carlsson & Fikret Berkes, “Co-management: concepts and methodological implications” (2005) 75:1 Journal of Environmental Management 65 at 66; Aaron T. Dale, “Inuit Qaujimajatuqangit and Adaptive Co-Management: A Case Study of Narwhal Co-Management in Arctic Bay, Nunavut” (2009) These and Dissertations (Comprehensive) 931 at x.
  40. Comité d’examen des répercussions sur l’environnement et le milieu social, “About COMEX”, online : <http://comexqc.ca/en/a-propos/>.
  41. Energy and Mines Ministers’ Conference, Facilitating Responsible Mineral and Energy Development – Compendium of Case Studies on Building Public Confidence in the Mineral and Energy Resource Sectors (Winnipeg: EMMC, 2016).
  42. Natural Resources Canada, “Federal Oversight of the Nuclear Waste Management Organization’s Plan for the Long-Term Management of Nuclear Fuel Waste”, online: <http://www.nrcan.gc.ca/energy/uranium-nuclear/nuclear-fuel-waste-Bureau/7789>; Nuclear Waste Management Organization, “Regulatory Oversight”, online: <https://www.nwmo.ca/en/Canadas-Plan/Canadas-Used-Nuclear-Fuel/Regulatory-Oversight>.
  43. Indigenous and Northern Affairs Canada, “First Nations Land Management Regime”, online: <https://www.aadnc-aandc.gc.ca/eng/1327090675492/ 1327090738973>; Sasha Boutilier, “An Unsung Success: The First Nations Land Management Act” (2016) Policy Options.

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