AN OVERVIEW AND ASSESSMENT OF KEY CONSTITUTIONAL ISSUES RELEVANT TO THE CANADIAN NORTHERN CORRIDOR
This report considers at a high level a number of constitutional issues associated with the development of the proposed Northern Corridor, seeking to flag areas for further examination. It seeks to show how the Canadian Constitution offers mechanisms for such a multi-modal corridor but also poses barriers. In some ways, the challenge the Northern Corridor seeks to overcome is the presence of too many decision-makers on each individual transportation infrastructure project. The Canadian Constitution both offers ways past this problem and also replicates it. The first part of the paper examines constitutional rules relating to inter-delegation between the federal and provincial governments and suggests that cooperation and inter-delegation, drawing on models of past infrastructure projects, may offer a constitutional mechanism toward development of the Northern Corridor but that they require leadership and a lot of support from different actors. The second part considers what powers the federal government has on its own in relation to transportation infrastructure and concludes that these are very significant in the context of interprovincial/international transportation infrastructure but that unilateral federal action may still be undesirable for other reasons and that this power may just signal the role of federal leadership on the file. The third part considers the implications of constitutionalized Indigenous rights and suggests that there will be a need for close examination of various contexts and early engagement of Indigenous peoples in a project that could be beneficial for northern Indigenous communities, with many legal complexities otherwise present, including implications from Canada’s new legislation on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). A concluding section draws together key implications and suggests that the constitutional landscape calls for federal leadership but extensive engagement and cooperation with other actors, even while there remain many constitutional and legal issues that would warrant closer examination.
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