During the 2024 Fall semester, the Environmental Law Program (ELP) was delighted to host visiting scholar Professor David Wright from the University of Calgary.  Professor Wright’s research focused on the dynamics of climate law at the intersection of decarbonization and Indigenous Self-Determination, which he presented during his lunchtime talk: Intersection of Decarbonization & Indigenous Self-Determination – Consultation, Consent, Complexities.  His presentation focused on decarbonization in Canada while weaving in parallels to the United States and Hawaiʻi.  

Under the Canadian Net-Zero Emissions Accountability Act, Canada has committed to a net-zero carbon emissions target by the year 2050, which is similar to Hawaiʻi’s goal of achieving carbon neutrality by 2045.  

However, despite these governmental commitments, the path to reaching this goal is not easy.  Whether in Canada, the contiguous United States, or here in Hawaiʻi, governments and entities are struggling to balance the complexities of constructing new infrastructure.  Like any new large-scale development project, renewable energy projects require compliance with environmental laws like the Endangered Species Act, the National Environmental Policy Act, along with various permitting and zoning laws.  Additionally, all pathways to net-zero pass through Indigenous lands.  Given this context—and using Canada’s legal landscape as a reference point—Professor Wright contemplates how Indigenous Self-Determination intersects with decarbonization. 

Importantly, Canada’s Constitution recognizes Indigenous rights and affirms the existence of treaty rights.   Prior to the implementation of renewable energy projects, the government must also consult and accommodate the rights of Indigenous peoples.  

Through a shift in Canadian federal law, Professor Wright described how the consultation and accommodation process is evolving into a consent-based approach.  These shifting laws have allowed Indigenous peoples to reclaim their right to Self-Determination.

For example, Canada has legislated its United Nations Declaration on the Rights of Indigenous Peoples, and they have also adopted Indigenous Government Consent and Consultation Protocols.  Canada has also revised its Impact Assessment requirements (the process equivalent to the United States’ NEPA and Hawai‘i’s HEPA), to include certain provisions requiring that: (1) an assessment must take into account adverse effects on rights of Indigenous peoples, Indigenous knowledge, Indigenous cultures, and Indigenous-led assessments; (2) the final public interest determination must take into account adverse impacts on the rights of Indigenous peoples; (3) the Minister’s advisory council must include Indigenous representation; and (4) Review Panel members must have knowledge of the interests and concerns of the Indigenous peoples of Canada that are relevant to the assessment.

Professor Wright observed how the consultation process is allowing Indigenous peoples to retain decision-making and ownership over their lands:  Consultation has shifted to consent, unilateral decision-making has transformed into bi/multilateral decision-making, benefit agreements involve ownership, participation/placation now involves jurisdiction & self-determination, and instead of a sovereign-to-subjects approach, the process envisions a sovereign-to-sovereign approach.  

These changes have led to an Indigenous-led Cedar LNG project, a $21M Cowessess First Nation solar project, and a multilateral agreement between twenty-four First Nations for the Wataynikaneyap Transmission Project, among others.  By integrating Indigenous-focused policies into already existing legal frameworks, Canada has moved away from the top-down, transactional approach, often seen in other governments.

Professor Wright argued that Canada’s shifting legal landscape provides guidance to other jurisdictions with decarbonization goals.  For Hawaiʻi to make advancements in decarbonization, Professor Wright suggested that, like Canada, Hawaiʻi may need to make constitutional amendments based on the development of International human rights and norms.  Additionally, further support and recognition from the United States federal government is needed.  Professor Wright also emphasized that the approach to developmental projects is just as important as the legal landscape.  Like Canada, processes should shift the focus to consent, reparations/restorative justice, and ownership on a community-and project-specific basis.

ELP is grateful for Professor Wright’s insights on the intersection between decarbonization and Indigenous Self-Determination.  Hawaiʻi has much to learn as the state works towards decarbonization, and examples from other jurisdictions like Canada provide relevant and necessary examples of how this can be achieved!

Please find Professor Wright’s full presentation here.  

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