Amnesty International says the $9-billion Site C hydroelectric dam project in northern B.C. threatens "the human rights of Indigenous peoples" in Canada. And Amnesty and others say it cannot be allowed to go ahead without the "free, prior and informed consent" of the area's native people.
Whether the project is or isn't a good idea, or whether it's environmentally sound and adequately respectful of local landowners and rights holders are questions we won't try to answer. But as with all things involving the government of a country and a province, there has to be a recognized process to arrive at answers: Whether a project goes ahead, to what extent objections are taken into account, and to what degree local residents are compensated. As part of the approvals process, Canadian constitutional law imposes a duty to consult affected indigenous peoples, if their rights may be infringed upon.
Consulting, however, is not the same as securing "free, prior and informed consent." The latter is the language of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The former is the language of Canadian law. The latter sounds like a veto. The former is considerably less clear-cut.
The Trudeau government has strongly embraced UNDRIP, with its wording about the need for "free, prior and informed consent." But late last month, the Trudeau government also quietly issued construction permits for Site C, which had itself been given federal and provincial go-ahead in 2014, after an environmental review. That has left many native leaders indignant.
Ottawa and B.C. have a duty to consult extensively with local native groups, and the duty is not just a fig leaf. Earlier this summer, the Federal Court of Appeal threw out the Harper government's approval of the Northern Gateway pipeline project, saying Ottawa's minimal level of consultation was inadequate.
But as Canadian law now stands, a duty to consult isn't a veto. Does the Trudeau government want to change that? Critics are rightly concerned that's what signing on to UNDRIP means. But in the wake of the Site C construction approvals, native groups fear the exact opposite: that they've been sold a bill of goods, and UNDRIP's words won't be given full legal effect.
To govern is to choose. Eventually, the Trudeau government is going to have to choose who it wants to disappoint.