The transition to clean energy is essential to avoid the most severe impacts of climate change, but this process should happen in a fair and inclusive way that leaves no one behind. The energy transition should maximize benefits for all stakeholders, and renewable energy governance is a critical component of this. However, there are significant challenges to ensuring that the governance of renewable energy projects utilizes meaningful engagement and partnership approaches with local communities, including Indigenous groups. This includes concerns around power imbalances between parties such as the Government, private companies and Indigenous peoples, lack of Indigenous participation in decision-making, and existing issues with unequal distribution of renewable power benefits. Examples from BC demonstrate evidence of good practice in the realization of a just transition by involving Indigenous ownership and participation in renewable energy governance. However, the overall process is still far from being perfect.
Case study: British Columbia, Canada.
BC prides itself on its significant development of hydropower – a “clean and renewable source”. The province’s electricity is at 98% generated by “renewables” including hydropower, wind, solar, biofuels and geothermal energy (Canada Action). While Clean Energy Canada reports that a majority of British Columbians prefer the Government to focus on developing renewable energy, a recent investigation by The Narwhal highlighted how in 2018 the province imported more electricity than it exported – largely due to its imports of energy produced in the United States from “brown” sources, coal and gas. In 2017, these electricity imports accounted for 1.2 million tons of carbon dioxide emissions.
Regarding clean energy projects in the province, according to the Pembina Institute, First Nations own, operate, or are co-partners in 79 grid-tied renewable energy projects – delivering close to 13% of the province’s electricity. Cooperation with First Nations in BC is framed by its Declaration on the Rights of Indigenous Peoples Act (DRIPA), which was passed into law in 2019. According to Article 3, “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. As such, the development of renewable energy projects in close partnership with Indigenous rights holders is a strong opportunity for the strengthening of income and livelihood sources for First Nations across the province.
While BC is indeed the biggest generator of hydropower behind Québec (Canada Action) which also accounts for 87% of its electricity, the province accounts for 35% of the total Canadian natural gas production (Canada Energy Regulator). BC also has two refineries – one located in Prince George and the other in Burnaby. BC’s crude oil production accounts for 2% of the total national production as of 2020. Renewable natural gas – “carbon neutral methane that is produced from the decay of organic matter in farms and landfills” (Canada Energy Regulator) – has enabled the heating of close to 3470 homes.
Indigenous Rights in BC: Application, Limitations and Successes
Energy in all its specificities is thereby central for BC’s economy both in terms of production and consumption – including for Indigenous communities. On Indigenous rights, the adoption of the UNDRIP in its legal fabric has allowed BC to implement various legal and economic paths in support of an increasingly significant ecological democracy. The implementation of the UNDRIP promoted the adoption of free, prior and informed consent (FPIC) from Indigenous peoples, who now can actively participate in environmental (EIA), social (SIA) and economic (BIA) assessments with full access to information and justice. The decision of the Supreme Court of Canada in the Tsilhqot’in case of 2014 [ 2 SCR 257] promoted the DRIPA, with the recognition of an Aboriginal land title to Tsilhqot’in First Nation. The court recognized that the Tsilhqot’in people met the criteria for establishing title given their continued occupation, use and control over the land. The case of Tsilhqot’in vs. British Columbia has promoted three important developments:
1: mandated that the federal and provincial governments must obtain the consent of the Indigenous community before starting the project;
2: the court has adopted a culturally sensitive approach to environmental matters, recognizing the dual perspective that includes the indigenous cosmological dimension of nature with the public interest of the state;
3: promoted the implementation of international instruments such as the UNDRIP.
Despite the progress in the legal field, Arend J.A. Hoekstra and colleagues suggest that the UNDRIP reserves many application limitations. First, the adoption of the UNDRIP has not been followed by a monitoring system and a framework of regulations that could suggest the standards of participation and accommodation. Secondly, the Government can still infringe Indigenous land rights if it demonstrates a substantial economic benefit to the state by virtue of the margin of appreciation reserved for greater adherence to the adoption of the UNDRIP. Despite application perplexities, in the recent Saik’uz case [2022 BCSC 15] the Supreme Court declared that “[i]t remains to be seen whether the passage of UNDRIP legislation is simply vacuous political bromide or whether it heralds a substantive change in the common law respecting Aboriginal rights including Aboriginal title”.
“Not perfect, not final, and not complete”
The application of the DRIPA was followed by considerable jurisprudential development (Gitxaala Nation v. Chief Gold Commissioner of B.C. et al. and Ehattivaht First Nation v. His Majesty the King in right of B.C. et al.) aimed at respecting the agreements between Government and Indigenous communities on FPIC and meaningful participation by facilitating the access to justice in case of lack of consultation. This means that the legal process that began with Yahey vs BC [ 2021 BCSC 1287] regarding the Government’s duty to evaluate the cumulative impacts of industrial development found practical validation after the approval of the DRIPA. In 2021, the Government of Canada demonstrated its willingness to implement the UNDRIP at the federal level through the enactment of the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA). As in BC, the UNDA depends on the implementation of the Action Plan whose draft was published in March 2023. The draft is the result of two consultative phases between Indigenous populations, Government and Industry. According to AFN National Chief RoseAnne Archibald, the first draft of the UNDA does not respect the differences in priorities and needs of the various Indigenous communities in Canada, such as Inuit, Métis and First Nations. Furthermore, much criticism was raised regarding the consultative procedures and the destination of the budget used for this purpose. During the United Nations Declaration on the Rights of Indigenous Peoples legislation in Ottawa in 2020, Justice Lametti made a comment regarding the UNDRIP: “It is not perfect. It is not final. It is not complete”.
It is clear that discourse on green transitions requires attention to their sociocultural, economic and legal implications. In particular, it is crucial to consider ways of achieving a just transition that prioritizes the involvement of all stakeholders – including Indigenous groups – and renewable energy governance is an avenue for doing so. As mentioned, BC is the first Canadian province to have implemented the UNDRIP, thus changing the ways in which industries must consult with Indigenous peoples regarding the exploitation of natural resources. Indigenous culture is strongly linked to the environment and vulnerable to the negative impacts of climate change and exploitative economy. Therefore, Indigenous communities are often pressured to negotiate disadvantageous agreements with the relevant authorities – thereby succumbing to Western procedures and frameworks. The colonial legacy lives on. In fact, many authors have employed the term green-colonialism to describe the equal struggle between Indigenous land rights and low ecological footprint activities. BC therefore represents an example of the complexity of the process for the implementation of the UNDRIP and FPIC.
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The Arctic Academy for Sustainability 2023 is part of activities of the UArctic Thematic Network on Arctic Sustainable Resources and Social Responsibility (ASRSR).