Brian Pallister is the Premier of Manitoba.
Canada-wide blockades sparked by the construction of the Coastal GasLink pipeline within Wet’suwet’en territory have underscored an overriding national imperative: securing clarity and predictability around Indigenous consultation and environmental approval processes. The havoc experienced by Canadian families and businesses caused by this uncertainty cannot become the new normal.
That’s why we need to think twice about compounding it through problematic new federal government legislation on the United Nations Declaration on the Rights of Indigenous People (UNDRIP).
The devastating losses born of regulatory confusion and frustrated expectations are measured in jobs lost and uncreated, cancelled investments in the billions, costly project delays, disruption in the flow of critical goods and supplies, and immeasurable damage to Canada’s domestic and international reputation. It is a formula for economic contraction, and opportunities left unrealized and lives not lifted.
Now is not the time to create even more confusion – and undermine genuine reconciliation – by directly importing undefined international legal concepts into Canadian law. This will spawn decades of additional litigation and jurisprudence, while perpetuating the uncertainty that only compromises the interconnected advancement of economic development and reconciliation.
If what stands at the end of a formal regulatory process is a blockade, or just another politician with an agenda, companies and investors with the vision and resolve to place capital at risk will simply not embark on that process at all. Canadians will lose.
In 1982, Section 35 added the following words to the Canadian Constitution: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." Thirty-eight years and numerous court decisions later, we are continuing to move forward on developing a coherent framework for how to respectfully consult and accommodate Indigenous concerns.
This evolution has by no means been perfect. But it has laid down critical foundations seeking to strike an essential balance. A balance that recognizes fundamental obligations and Crown duties, holds governments to account, empowers accommodation and reconciliation and recognizes that absolute veto powers do not exist.
In these unsettling times, this well-developed legal framework needs to be reaffirmed and reinforced. It does not need to be upended. It needs clarity instead.
UNDRIP, with its concept of “Free, Prior and Informed Consent” for critical infrastructure and development projects within traditional Indigenous territories, will introduce the exact opposite of clarity. It would enshrine in Canadian law renewed public signals that are already encouraging veto-based demands, as well as illegal blockade actions – in defiance of court orders.
Federal adoption of UNDRIP threatens to undo decades of Canadian jurisprudence. It will replace Canadian precedents that have advanced Indigenous rights with undefined international good intentions. It offers renewed legal strife, not new legal solutions to our current difficult challenges.
More confusion and uncertainty will reign. Investors and businesses will focus elsewhere. Opportunities will be lost. Acrimony will continue. And the twin goals of economic development and Indigenous reconciliation – and the essential pathway between them – will not be advanced.
Building positive, respectful partnerships with Indigenous communities is fundamental to enhancing Indigenous participation in Canada’s economic prosperity. Economic reconciliation is central to real reconciliation. Our regulatory frameworks need to support those partnerships, not drive them apart.
Constructive improvements to regulatory processes are required, not fresh impediments. This requires clarity and predictability. It demands a depoliticization of the process, not another level of politics.
Canada needs to say “yes to respect” to move ahead. Respect for Indigenous rights and established constitutional law. Respect for clarity and certainty over agreed regulatory processes that can work. And respect for provincial jurisdiction and provincial government relationships with local Indigenous communities.
Adding a whole new layer of legal, social, economic and environmental consequences will not improve an already unsettled process. Business and investor confidence so critical to generating projects will remain elusive. Growth and jobs will be more difficult to create. And the tremendous economic and reconciliation opportunities that such projects yield will simply fall away.
Good intentions can lead to unintended consequences. And, yes, there’s a law for that too.
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