In the overheated political times in which we live, the passage of legislation that will arguably create even greater uncertainty in the country’s resource development sector might be considered poor timing.
Especially if the government responsible for the new law is one viewed as a hostile enemy of the province that most needs energy market roadblocks dismantled, not erected – Alberta. But such is the fractured nature of our federation these days.
Last week, legislation introduced by British Columbia’s New Democratic Party government aimed at implementing the United Nations Declaration on the Rights of Indigenous Peoples (or UNDRIP, as it’s more commonly known) passed second reading. It’s expected to receive royal assent in the next few weeks.
This is landmark stuff. UNDRIP was adopted by 144 countries in 2007. Originally, one of four countries that refused to sign onto the accord, Canada relented and became a signatory three years later. The declaration sets out the minimum standards for the “survival, dignity and well-being” of Indigenous peoples around the world.
It comprises 46 articles, the most contentious of which is No. 32: Governments (or agents) must consult in good faith with Indigenous peoples to obtain their “free and informed consent” prior to the approval of any project affecting their lands and territories.
There are some who have interpreted this section as handing First Nations the right to reject resource development projects that are not to their liking. Former Saskatchewan premier Brad Wall said Article 32 amounts to a “de facto veto of natural resource projects, potential pipelines … for our First Nations.” And that is a common sentiment among business types in Canada, who believe certain governments are doing enough as it is to destroy resource development in this country without bringing in additional measures that could introduce further delays to a much-criticized approval process.
Prime Minister Justin Trudeau committed to adopting UNDRIP at the federal level. Legislation was passed by the House of Commons in 2018, but got stalled in the Senate, where it died on the order paper when the recent election was called. Given the current political climate, I somehow doubt Mr. Trudeau will be eager to reignite passage of the bill any time soon.
My guess is there will be other priorities.
It’s worth noting that the Business Council of B.C. has endorsed the provincial legislation. The Opposition Liberals don’t appear to have any interest in thwarting its passage either. The most common refrain I hear from those you’d expect to be most concerned about the law’s impact is: The courts have already said that inherent Indigenous rights and titles exist. This doesn’t supersede that assessment.
I mostly subscribe to that viewpoint. However, I think we all know that the rights imbued in the UN doctrine will at least give First Nations more ammunition. And that ammunition will be used to leverage their power even more. Ultimately, that power will be tested in court.
Even B.C. Premier John Horgan concedes that.
“We won’t know [the impact UNDRIP will have] until the courts advise us,” the Premier told me during an interview in his office. “There are going to be subsets of nations or clans within houses that will say I don’t like this and they will inevitably test these things in the courts.”
But the Premier told me he has gone through the UN language forward and backward and while the words “free, prior and informed consent” do exist, the word “veto” does not.
“Consent is subjective and that’s where the courts may have an interpretation,” the Premier said.
Ultimately, the question is: How has the current system worked in terms of getting certainty around resource development? The answer can only be it hasn’t, especially when it comes to First Nations involvement. So why not try a different methodology?
Will it be the end of litigation? No. But it will force parties to sit down in a more meaningful way that could help avoid the courts.
That said, it’s worth remembering that most of B.C. was not settled by treaties as was the case elsewhere in the country. Consequently, ownership to almost 100 per cent of the province is under challenge by more than 200 First Nations.
That, in itself, will always pose the greatest threat to resource development in the province. And all the screaming and foot-stomping by politicians in other parts of the country will never change that.
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