Part 1 of this two-part series looked at the potential of the Canada-Alberta Memorandum of Understanding (MOU) to slash carbon emissions in Alberta and the impediments a new bitumen pipeline to a deep-water port on the B.C. coast — a prerequisite for these emission reductions — must overcome.

Here, in Part 2, a possible roadmap for overcoming B.C. government and Coastal First Nations opposition to a new pipeline to the northern coast of the province will be discussed, after laying out why Indigenous power over natural resource and related infrastructure projects will continue to grow in the province and Canada in the future.

Growing Indigenous power

The main reason Indigenous peoples will have greater power over new projects like a possible bitumen pipeline to the northern coast of B.C. in the future is because the provincial and Canadian governments have committed to make their laws and decision-making consistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) by passing into law the Declaration on the Rights of Indigenous Peoples Act (DRIPA) in November 2019 and the United Nations Declaration on the Rights of Indigenous Peoples Act in June 2021.

“Canadian law recognizes a duty to consult and, where appropriate, accommodate Indigenous peoples when the Crown contemplates conduct that may adversely affect asserted or established existing Aboriginal rights or title,” Radha Curpen, a partner and group head of ESG and sustainability at Vancouver-based law firm McMillan LLP, told DOB Energy.

Where Aboriginal title is established, governments generally require consent to proceed or must meet a stringent justification test, including public purpose, minimal impairment and meaningful consultation, she added.

“[But] the 2021 federal UNDRIP Act commits Canada to align federal laws with UNDRIP through an action plan developed with Indigenous peoples, and Article 32 of UNDRIP contemplates obtaining free and informed consent for projects affecting Indigenous lands or territories,” Curpen said. “This sets a higher standard of engagement than the duty to consult and, where appropriate, accommodate under section 35 of the Constitution Act, 1982.”

While interprovincial pipelines remain federally regulated, British Columbia retains authority over provincial Crown lands, water, wildlife and local governance, and must ensure that provincial laws in these domains are consistent with UNDRIP based on the B.C. Court of Appeal’s decision in Gitxaala v. British Columbia on Dec. 5, 2025, she added.

This landmark decision affirmed that B.C. laws must be consistent with UNDRIP, in essence making the right to Free, Prior, and Informed Consent (FPIC) a more serious legal consideration for natural resource and related infrastructure projects in the province.

“Several uncertainties remain material to decision-making, even within this clarified framework,” Curpen said. “The precise contours of consent expectations and DRIPA implementation will continue to evolve through legislation, policy and case law, including how courts interpret the interaction between UNDRIP commitments and federal jurisdiction over interprovincial works.”

She added: “In this legal environment, a pipeline approval that lacks genuine support from Coastal First Nations would face extreme vulnerability to judicial review and regulatory challenge, even if approved at the federal level.”

The overarching roadmap

To move a new bitumen pipeline to the northern coast of B.C. forward, the federal government needs to articulate the project as nationally significant infrastructure linked to energy security, trade diversification and fiscal stability, commit to a coherent, time-bound approvals roadmap, and provide a practical blueprint to encourage the four levels of government — federal, provincial, municipal and First Nations — to work together, Curpen said.

“The practical blueprint is an integrated package of equity, governance, environmental performance and intergovernmental co-ordination that is negotiated early and transparently,” she said. “Without such a package, legal and political realities make approval and execution highly unlikely under current conditions.”

Curpen added that early, substantive partnerships with affected Indigenous communities and alignment with provincial authorities are not optional mitigants — they are “foundational to any credible path” to tidewater.

“The cost of ignoring these choke points is measured not only in litigation and delay but also in investor uncertainty that compounds project risk premiums.”

Intergovernmental agreements can further stabilize the framework by defining revenue-sharing formulas, joint approval thresholds, and binding dispute-resolution mechanisms that give B.C. a meaningful voice while respecting federal jurisdiction over interprovincial works, according to Curpen.

“Governance design warrants equal attention. Establishing co-management structures with clear authorities, transparent data-sharing, and independent monitoring can both improve performance and ensure expectations are met,” she said.

“Finally, early engagement with provincial and municipal authorities to sequence permits, harmonize conditions and address cumulative-effects concerns reduce the risk of compound bottlenecks that emerge late and are costlier to resolve,” Curpen said.

To achieve all this will require enlightened leadership by the federal government, Gitane De Silva, president of GDStrategic and former chief executive officer of the Canada Energy Regulator (CER), told DOB Energy.

“It is always easier to build any infrastructure project when there is a combination of political will and local support,” she said. To do so, “you need to take the time to get to know the other parties, think about what matters to them, and what you have in common. If you start by focusing on those issues, you can make progress and build from there. Think about the local benefits, not just the national imperative.

“But this process will take significant investment by the federal government,” De Silva added. “It has a key role to play both as the Crown [responsible for Indigenous peoples] and as the one with jurisdiction over interprovincial and international pipelines.”

The Indigenous imperative

“The strengthening of Indigenous participation through jurisprudence, federal UNDRIP implementation, and B.C.’s DRIPA meaningfully increases legal risk for projects lacking genuine Indigenous partnership, particularly along terminal and marine corridors,” Curpen said. “Process-based strategies — from extending assessment timelines to judicial review — can impose delays and conditions that render a project uneconomic even if initial approvals are obtained.”

As a result, “a credible path to buy-in [from First Nations, including the Coastal First Nations] requires an integrated package of Indigenous equity, co-management, enforceable environmental commitments, and intergovernmental agreements that collectively provide clarity, certainty and finality,” she said.

Equity ownership and revenue-sharing for affected Indigenous communities, modelled on lessons from Trans Mountain’s pipeline expansion and LNG Canada, can align long-term interests and shift the posture from opposition to partnership, Curpen said.

Co-management arrangements that provide binding authority over operations, emergency response, environmental monitoring, and spill preparedness demonstrate respect for self-determination and reduce perceived and actual risk, she added.

“Enhanced environmental protections, including enforceable commitments on emissions intensity, restoration of sensitive ecosystems, and strong spill-prevention and response protocols overseen by joint federal–provincial–Indigenous bodies, address a core source of political and legal vulnerability,” Curpen said.

In addition, capital spending planning must reflect that the critical path runs through terminal sites, foreshore areas and marine routes where Aboriginal rights and title assertions are most acute, not solely through the interprovincial pipeline corridor, according to Curpen.

Hence, “budgets and schedules should include contingencies for extended assessments, iterative consultation, and potential condition-setting that affects construction and operations,” she added.

“Route selection, the status and strength of title claims along terminal and marine corridors, and the evidentiary record on impacts and accommodations become decisive variables that shape legal durability,” Curpen said.

To proceed with confidence, proponents should commission a route-specific rights and title map focused on terminal and marine segments, develop a consultation record strategy that anticipates judicial review standards, and prepare a term sheet for Indigenous equity participation and co-governance, she added.

“A proponent that builds a consent-based partnership with affected Indigenous communities materially improves the probability of withstanding judicial scrutiny and maintaining schedule and budget discipline,” Curpen concluded. “Conversely, a strategy that relies on formal jurisdictional arguments while discounting UNDRIP-aligned expectations invites sustained legal and political headwinds that can render the project non-viable.”