Trudeau government bill may grant First Nations veto power over pipelines and other projects

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Appeared in the National Post, December 19, 2020
Trudeau government bill may grant First Nations veto power over pipelines and other projects

Federal Minister of Justice David Lametti recently unveiled Bill C-15, whose purpose is to authorize a three-year plan for taking “all measures necessary to ensure that the laws of Canada are consistent” with the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP).

The Trudeau government previously tried to pass similar legislation on the cheap, by supporting a private member’s bill. But it was talked out by Conservative senators. This new measure is a government bill, so it can be pushed through over parliamentary opposition by using time allocation (i.e. cutting off debate). But it may not be an entirely smooth ride for C-15. The governments of the six provinces stretching from Alberta to New Brunswick, and containing more than 80 per cent of Canada’s population, have already asked for more time to respond to the draft bill.

UNDRIP is a long document, much of which is not controversial. But it includes a clause stating that economic development cannot go forward on lands owned or claimed by Indigenous peoples without their “free, prior, and informed consent” (FPIC). That has long been true of Indian reserves, but Supreme Court decisions about the “duty to consult and accommodate” have extended aboriginal rights over much larger but undefined “traditional territories.”

Yet even as the courts created these new rights, they were careful to develop a counterbalancing doctrine of infringement, where governments could abridge aboriginal title and rights in the pursuit of public purposes. Entrenching UNDRIP and FPIC in Canadian law would upset this careful balance, essentially giving First Nations, Inuit and Métis organizations veto power over economic development in broad swathes of the country, even though the Supreme Court has repeatedly said there’s no constitutional right of veto.

Advocates for C-15, including the justice minister, note that the word “veto” does not appear in the bill, but this is disingenuous to the point of dishonesty. The goal of C-15 is to work towards harmonizing Canadian law with UNDRIP, and the obvious meaning of FPIC is an Indigenous veto. To pretend otherwise is to be like the man who jumped off a 40-storey building and shouted “so far so good” as he fell past the 20th floor.

To see the mischief this bill will cause, you only have to stretch your memory back to February 2020, when Canada was paralyzed for weeks by a dispute over Coastal GasLink. The pipeline route crosses the traditional territories of 20 First Nations, all of whose elected band councils supported the project. But the so-called traditional chiefs of one First Nation were unalterably opposed, and their supporters across the country rushed to blockade highways and railways.

The connection with C-15 is that British Columbia had passed similar legislation just a few months before. Pipeline opponents, supported by UN officials, tried to legitimize their opposition by invoking the new legislation, in effect claiming a right of veto. The blockade ultimately failed because both Canada and B.C. wanted the pipeline built, and it was unclear whether the so-called traditional chiefs represented anyone beyond themselves. But it’s not hard to imagine circumstances where such a blockade, invoking UNDRIP and FPIC, could succeed.

Natural resource industries were severely disrupted by the Supreme Court’s new consultation jurisprudence, starting in 2005. At first the right to be consulted was invoked mainly by opponents of development, encouraged by outside funding from American environmental foundations. The result was interminable delay leading to the death of projects such as the Northern Gateway and (almost) Trans Mountain pipelines. But over time, First Nations and Métis have come to welcome resource development and now focus on sharing ownership and benefitting in other ways. At the same time, corporations realize they need Indigenous peoples as workers, investors and political allies.

The last thing Canada needs now is another round of uncertainty caused by the imposition of new and untested legal language. We should remember the wise words of Cree business consultant Dale Swampy: “The discussion on UNDRIP has focused narrowly on the ability of Indigenous peoples to say ‘no’ to economic development. Ensuring equitable participation in, and benefits from, the modern economy—being able to say ‘yes’ to development—is just as important to the well-being of Indigenous peoples.”

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