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jeffrey simpson

Globe and Mail columnist Jeffrey Simpson.The Globe and Mail

The federal Liberal government on Monday accepted the United Nations Declaration of the Rights of Indigenous Peoples, adopted in 2007 by the General Assembly after two decades of tortuous negotiations but never fully accepted by the previous Conservative government. What Canada's acceptance of this declaration will mean no one knows.

If the declaration remains a flowery statement of lofty principles and goals without any legal standing in Canada, it won't mean much. That's the way it is with other UN "declarations," as opposed to UN treaties.

If, however, Canadian courts accord the declaration domestic legal status, then the impact could be huge. If Parliament ever attempted to legislate what the declaration says, it would face a nightmarishly difficult task to turn loose and imprecise goals into detailed legislation.

Canada is already doing in whole or in part most of what is in the declaration. There are two clauses, at least, that should give pause.

The first is Article 26 (1), which reads, "Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired." A later subsection requires states to give "legal recognition and protection to these lands, territories and resources."

Quite apart from sorting out just which lands particular aboriginal groups might claim – don't forget our Supreme Court has just muddied these waters considerably in its recent decision about Métis having land claims as well as First Nations – does a sovereign country such as Canada really want to enshrine Article 26 into its own law?

Canada spent decades wrestling with Quebec secession – not just the politics of it, but the legal case for and against it. The federal Clarity Act – written by Stéphane Dion, who is now Minister of Global Affairs – put very stringent conditions around possible secession.

If the "right" outlined in Article 26 is coupled with other clauses in the declaration about "self-determination" (Article 3), then Canada risks enshrining in domestic law for aboriginal people what it fought strenuously against in the case of Quebec. No Canadian government could or would do that, although there are already aboriginal groups that do not accept the sovereignty of Canada.

Another clause declares aboriginal people must give "free, prior and informed consent" (FPIC) to any project on their lands, assuming that the definition of the lands and the title to them is clear. Even if title is not clear, natives have claimed that FPIC should apply in practice, a stronger assertion of aboriginal rights than the Supreme Court's injunction for "consultation and accommodation."

What does "free, prior and informed consent" mean? Canadian courts have been clear that aboriginal groups do not have a veto, but that governments have a heavy responsibility to consult and, where possible, accommodate aboriginal concerns.

Some aboriginal leaders and university activists insist that a veto exists in law. They point to the UN declaration to buttress their case, which is one of the reasons the previous government was so nervous about endorsing it. Others have argued that FPIC imposes an even heavier burden on governments and companies to seek aboriginal agreement but stops short of a veto.

In a very helpful paper for the Macdonald-Laurier Institute, aboriginal leader Blaine Favel, chancellor of the University of Saskatchewan, and professor Ken Coates from the same university try dispassionately to explain what "free, prior and informed consent" might mean. Theirs is not an easy task.

It's not hard to see why resource companies might be dismayed at "free, prior and informed consent." If FPIC morphs into a veto, with "consent" meaning approval, then forget about pipelines and many other projects where a bunch of different aboriginal groups are affected. Getting unanimous consent would be next to impossible.

A project such as the Energy East pipeline wouldn't have a chance. A veto would mean that the will of the federal government, which ought to speak for all Canadians, would have almost no chance to prevail, no matter what the regulatory processes. If FPIC means something less, it could lead to more agreements, encouraging companies and governments to negotiate deals with willing aboriginal groups, of which there are many.

What all parties to resource development need is more certainty, because for now no one can say for sure in many cases who owns land, whether aboriginal people (First Nations and Métis) have title, what is the precise duty to accommodate and consult. "Free and informed consent" could make this confusion much worse or, perhaps, bring a bit more clarity.