In the Canadian Venn diagram of Indigenous reconciliation, resource development and climate change, British Columbia’s Coastal GasLink pipeline lands smack in the hot centre of three political issues.
After a long period of debate and negotiation, major construction on the pipeline is set to begin this summer. There may, however, be one final roadblock: The United Nations Declaration on the Rights of Indigenous Peoples.
B.C. last year became the first province to enshrine UNDRIP into law. At the federal level, the Trudeau government plans to do the same. That is even though it remains unclear exactly what UNDRIP means, and how it may change Canadian law. The document pledges governments to secure the “free, prior and informed consent" of Indigenous people in a number of situations, including before giving the green light to resource projects.
To the average person, and in other areas of law, the word “consent” has an unmistakable meaning. Without a “yes,” things can’t move forward. No means no – period.
So does UNDRIP give Indigenous groups a veto over resource developments affecting them? B.C. Premier John Horgan, a supporter of both UNDRIP and Coastal GasLink, says no. Some opponents of the pipeline say yes.
The $6.6-billion pipeline would start in the natural gas fields of northeastern B.C. and wend 670 kilometres west to Kitimat, where an $18-billion liquefied natural gas export plant is being built. Roughly one-quarter of the line crosses Wet’suwet’en territory.
Some Wet’suwet’en hereditary leaders have sought to block the pipeline, a situation that flared a year ago and again this month. The Supreme Court of B.C. in late December extended an injunction against protesters.
While there is Indigenous opposition, there is also considerable support. The five elected Wet’suwet’en band councils on the route are all in favour, as are 15 other elected Indigenous band councils.
On Monday, Mr. Horgan spoke decisively: “The courts have confirmed that this project can proceed, and it will proceed,” he told reporters. “The rule of law must prevail.”
The pipeline’s critics, however, believe that UNDRIP has rewritten the law. The central argument of Wet’suwet’en hereditary chiefs and their supporters is that these communities have not given their free, prior and informed consent. B.C.’s Human Rights Commissioner and the UN Committee on the Elimination of Racial Discrimination agree. They want the pipeline stopped.
That effectively endorses a veto for a single opponent, despite widespread Indigenous backing.
As was made plain in the litigation surrounding the Trans Mountain pipeline expansion, prior to approving a resource development project, governments must extensively and meaningfully consult with affected Indigenous groups. They may be obligated to negotiate, mitigate and compensate.
But the courts have said, repeatedly, that the duty to consult is not a veto. In other words, Mr. Horgan is right that the law governing the pipeline is clear. Or rather, he’s right that the law was clear, prior to UNDRIP.
Mr. Horgan on Monday sidestepped the impact of UNDRIP, saying B.C.’s new law is “forward-looking” and doesn’t apply retroactively to in-process projects such as Coastal GasLink.
Others have a different view. The Indigenous Bar Association on Sunday said the Supreme Court of B.C. failed when it granted the injunction. The group found it “difficult to comprehend” how the court made such a decision, given B.C.'s adoption of UNDRIP.
This highlights the key unanswered question. If Coastal GasLink were proposed today, and garnered unanimous backing among elected Indigenous band councils but opposition from part of one community in one region, how would the divide be decided in court, through the lens of UNDRIP?
The situation in northern B.C. could play itself out over and over again. The coming construction of the Trans Mountain oil sands pipeline is another possible flashpoint. There is Indigenous support but also opposition. Expect the same UNDRIP argument – the absence of unanimous consent – to be made against Trans Mountain.
All of which should give pause to Canadians, and to the Trudeau government. Canada already has a rigorous and well-developed Indigenous legal framework. Rewriting it is not desirable.