The Trudeau government’s embrace earlier this year of a United Nations declaration does not confer on First Nations a veto on natural resource projects in their territories, according to Indigenous Affairs Minister Carolyn Bennett.
Bennett, whose statement this week was greeted positively by a B.C. business group, noted a number of authorities who have rejected the notion of a blanket and unilateral ability by First Nations to prevent projects from proceeding.
They are Assembly of First Nations Grand Chief Perry Bellegarde, the Supreme Court of Canada, and one of the authors of the UN Declaration on the Rights of Aboriginal Peoples, James Anaya.
They “do not believe this is an outright veto,” Bennett said in an interview.
The UN’s Declaration on the Rights of Indigenous Peoples, passed by a majority of states in the General Assembly in 2007, states that projects or laws can’t be imposed without the “free, prior and informed consent” of indigenous people impacted by those laws.
The previous Conservative government reluctantly consented to UNDRIP in 2010, but only after attaching caveats noting that the decision doesn’t confer a veto. But the new Liberal government embraced it unconditionally.
The Trudeau government’s view mirrors that of the Supreme Court of Canada, most recently in its landmark 2014 decision involving B.C.’s Tsilhqot’in First Nation, according to Bennett.
Chief Justice Beverley McLachlin, writing on behalf of all nine justices, said governments must consult and accommodate First Nations interests, and can only infringe on proven aboriginal title to land — say, by approving a major natural resource project — if they can demonstrate that there is a “compelling and substantive” public need.
The action must also be consistent with the Crown’s “fiduciary duty” to the First Nation involved, McLachlin wrote.
Bennett said projects and laws “in the national interest are to be considered.”
Some First Nations have cited the UN declaration as evidence of a formal veto on projects in their traditional territory. And the declaration is likely to be cited in December if the Trudeau cabinet approves Kinder Morgan’s proposed $6.8 billion expansion of its pipeline from Edmonton to Burnaby.
Jock Finlayson, of the B.C. Business Council, said Canadian and foreign investors have been confused by mixed signals from the federal Liberals about the ultimate meaning of UNDRIP.
He said he’s “comforted” by Bennett’s assurance that a veto isn’t being conferred.
“Hopefully, the federal government’s position on this point will be consistently and intelligently communicated so that it is understood by First Nations, project proponents, and both domestic and non-Canadian investors seeking to commit capital to Canadian-based ventures,” Finlayson said.
He noted that Canadian judges have made clear that the Crown has “extensive” obligations to consult with aboriginal communities, and accommodate them.
While the main responsibility for consultation falls on the shoulders of government, “the business community recognizes that it must respectfully and meaningfully engage with aboriginal communities when looking to develop projects in First Nations’ traditional territories and also find ways to ensure that economic development benefits aboriginal Canadians.”
In a recent interview Prime Minister Justin Trudeau neither confirmed nor rejected the notion he has handed out effective political vetoes.
“What I’ve heard from business communities is they’ve recognized that ignoring community voices, trying to run roughshod across environmental concerns, has resulted in not getting … pipelines and projects built that people wanted,” he said.
Grand Chief Edward John, a lawyer and member of the B.C. First Nations Summit executive, indicated Thursday that he doesn’t need any help from the federal government to understand UNDRIP in the Canadian context.
He offered a recent legal analysis by lawyer Paul Joffe to explain the difference between consent and veto.
Joffe indicated that it was no coincidence that the UN didn’t use the term veto, which “implies complete and arbitrary power, with no balancing of rights.”
The UN’s goal, according to Joffe, is to comprehensively balance all interests as a result of intensive and sincere government and industry efforts to consult and seek consent.
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