At Kinder Morgan Inc.’s annual general meeting in Houston last week, an Indigenous leader from British Columbia warned shareholders that her people have the legal authority to stand in the way of the Trans Mountain pipeline expansion.
“First Nations must give free, prior and informed consent to projects that impact our territory, and we do not consent,” stated Neskonlith Chief Judy Wilson, of the Secwépemc Nation that claims as its traditional territory about 500 kilometers of the pipeline route.
But Kinder Morgan points out that it has signed 43 benefit agreements with Aboriginal groups in B.C. and Alberta for its Trans Mountain pipeline – including deals with First Nations that are part of the Secwépemc Nation.
Whether Indigenous consent is required, and if so, who grants consent, remain open – and important – questions in Canada. As the conflict over the pipeline threatens to derail the $7.4-billion project, demands for clarity will be at the forefront in the coming weeks.
However, uncertainty over the extent of Indigenous rights and title are not new. These questions have been festering more than 35 years after the Constitution was amended to confirm the existence of aboriginal rights in Canada.
And the degree of ambiguity is greatest in British Columbia, where the absence of treaties has left most public lands subject to unresolved land claims.
Both the federal and B.C. governments are currently working on legislation to enshrine political commitments each has made to uphold the United Nations Declaration on the Rights of Indigenous People. UNDRIP requires signatories to obtain “free, prior and informed consent” from Indigenous communities prior to resource development in their traditional territories.
B.C. Premier John Horgan, speaking to reporters in April, chided Ottawa for failing to acknowledge the strength of Indigenous opposition to the pipeline. “There are significant nations along the corridor and at the tidewater that are adamant about this. I’m surprised that the federal government is not acknowledging that.”
Following Ms. Wilson’s address at the May 9 AGM, stockholders with a strong majority of Kinder Morgan’s shares voted in favour of more disclosure of the risk to the $7.4-billion pipeline project, and other ventures where environmental and legal concerns are raised.
They are not alone in finding the legal landscape in Canada blurry.
Justice Minister Jody Wilson-Raybould, in a speech to the Business Council of B.C. in April, said her government is working on a Recognition and Implementation of Indigenous Rights Framework that she hopes will help improve “the current realities of conflict, tension, cost, uncertainty, and litigation that we see embroiling some projects.”
She told the business audience that uncertainty has been entrenched because of Canada’s strategy to divide and disempower Indigenous nations.
The divisions were created when culturally and linguistically distinct First Nations were split apart into Indian Act bands. And those communities have been disempowered because Canada still denies Aboriginal rights and title exist, unless proven in court.
In British Columbia, where there were likely 20 First Nations prior to European settlement, there are now 203 Indian Act bands that represent rights and interests “that often intersect, overlap, or interconnect with each other,” Ms. Raybould-Wilson observed.
To build a pipeline across B.C. means there are many communities to consult with, and sometimes conflicting claims about who speaks for those communities.
The Justice Minister said the changes her government intends to make should provide “clarity and certainty about the who, how, and what of land and resource decision-making.” However she added that Indigenous communities still need to reconstitute their nations and governments so that they can say who has the authority to grant consent.
Scott Fraser, B.C.'s Minister for Indigenous Relations, said Ottawa’s legislative reforms are expected this fall, and his government will wait to introduce its own law to ensure the two are compatible. Like the federal government, B.C. is committed to reversing the legal position of denying rights and title, which has almost paralyzed the settlement of treaties in the province.
“We believe in an approach that recognizing that rights and title exist rather than fighting what is real,” he said in an interview.
As well, B.C. has promised to implement UNDRIP, including the requirement to obtain free, prior and informed consent. That needs to be defined in law, he said.
“We have to change the colonial model,” Mr. Fraser said. “It is the path toward opening up the province, bringing certainty to the land base. We have been mired in conflict forever.”