Indigenous Law Insights: Creating partnerships within Indigenous communities and use of traditional knowledge in project approvals

Over the past couple of decades, Canadian law has begun to incorporate consideration of Traditional Indigenous Knowledge into certain decision-making processes. Though there is no universally accepted definition, the 2022 Indigenous Knowledge Policy Framework for Project Reviews and Regulatory Decisions (the federal framework) describes it as “complex knowledge systems embedded in the unique cultures, languages, values, and worldviews of Indigenous Peoples.” Among other things, it includes factual, land-based information — for example, how lands in a proposed project area have historically been used for traditional purposes.

In the April session of Osler’s Indigenous Law Insights webinar series, partners Richard King (Co-Chair, Regulatory, Indigenous and Environmental) and Mary Buttery, KC (Litigation), presented on the role Traditional Indigenous Knowledge plays in policy, project reviews and the courtroom.

Topics explored during their discussion include

• the guiding principles of the federal framework
• when and how Traditional Knowledge should be considered by and presented to federal officials in regulatory proceedings
• how Canadian courts treat Traditional Knowledge, including oral history
• potential issues and sensitivities arising from consideration and application of Traditional Knowledge as evidence
• the three-part admissibility test established in Mitchell v. Minister of National Revenue, 2001 SCC 33
• interaction with the goal of reconciliation