NewsJan 9, 2019

Separating noise from facts on Indigenous rights

Article contributed by Sam Adkins.

Adkins is a lawyer in Vancouver, BC. and was previously the Aboriginal Relations Manager for LNG Canada.

Private land owners in Richmond, BC might be surprised to learn that there is currently an aboriginal title claim winding its way through the courts that affects hundreds of private properties. More surprisingly, the court does not want them to know about it. Should they be concerned? Probably not, but the reasons why are complicated.

So it goes with Canadian aboriginal law, a complex and deeply political area of law quietly transforming Canada. It occasionally bubbles to the top when pipelines are concerned, and a lot of ink is spilled about Indigenous consent, consultation, and veto. Fundamentally, the question we face is how to balance respect for Indigenous rights with the broader public interest in developing important infrastructure projects in Canada. It is a serious question without a simple answer.

Canada constitutionally protected aboriginal and treaty rights in 1982, putting us in a very small group of countries in the world that provide the highest possible level of legal protection to Indigenous rights. Brushing aside legal niceties, the effective constitutional requirement for the federal or provincial governments to violate an established aboriginal or treaty right in Canada is to obtain consent from the Indigenous group. But the right to consent is not absolute, and governments can proceed without consent where there is a significant public interest.

The challenge is figuring out what those rights are and when consent becomes a legal requirement. We have typically left it to courts to sort this out, but proving rights is an enormously expensive and time-consuming process. Take for example the historic Delgamuukw decision of the Supreme Court of Canada in 1997 confirming the continued existence of aboriginal title. Despite being successful in litigation that spanned well over a decade, the Wet’suwet’en and Gitxsan Nations did not actually prove they held aboriginal title in BC. Rather, they were told to go back and start again using the guidance developed by the court. They have never done so. The Tsilhqot’in Nation ultimately picked-up the ball, but it took another 17 years for them to be the first Indigenous group in Canada to prove aboriginal title. It is indeed a game of inches.

This leads us to consultation. Our courts responded to the lack of clarity about the scope of Indigenous rights by imposing consultation obligations on the federal and provincial governments. The duty to consult applies to all government decisions that might impact aboriginal and treaty rights, regardless of whether these rights are actually proven or fully defined. Consultation is meant to minimize disagreement and limit potential impacts on Indigenous rights when governments make decisions. It most commonly arises as part of regulatory processes on resource projects. Consultation is not consent, and Indigenous peoples do not have a veto over the outcome. Despite some hand-wringing of late, the law on duty to consult is pretty clear. Its application is the problem.

There is no dispute about whether Indigenous groups will be consulted on large resource projects; everyone is consulted. Disputes typically relate to either the meaningfulness of the consultation or the outcome. The first is a fair game. The second is not. Sometimes we will just not agree on an outcome and all the consultation in the world is not going to resolve our differences.

Proponents of resource project do their best to thread the needle. They carry out the heavy lifting on Indigenous consultation as part of regulatory processes. On long linear projects like pipelines or roads, this can often involve dozens if not hundreds of Indigenous groups. Proponents will also usually negotiate agreements directly with Indigenous groups to obtain support for a project. While not legally required, agreements are highly desirable for both sides and provide a helpful barometer of the elusive social licence that proponents are increasingly required to demonstrate. The reality is that many Indigenous communities do want to see resource projects go ahead along with the benefits they bring to their communities. But not everyone is going to agree with every project.

The LNG Canada Project and associated Coastal Gaslink pipeline in BC are good examples of this tension. The proponents of the LNG facility in Kitimat, BC and 670-kilometre natural gas pipeline announced in the fall of 2018 that they were proceeding with construction after years of regulatory approval processes and associated consultation with nearly thirty Indigenous groups across the province. These projects are massive undertakings and represent the single largest private sector investment in Canadian history. They also enjoy unprecedented support from the provincial and federal governments, municipalities and First Nations across the province. You would be hard pressed to find a better example of large-scale resource projects having achieved social licence.

That does not mean there is no opposition. A small group of Wet’suwet’en people known as the Unist’ot’en have been blockading the proposed route of the Coastal Gaslink pipeline for many years. An injunction was recently granted by the BC Supreme Court and the RCMP began enforcement actions to remove the blockade in early January.

The Wet’suwet’en is the same First Nation that brought the litigation in Delgamuukw. They are governed through a hereditary system comprised of thirteen different house groups, each with their own hereditary chief. But in a nod to the complexity of aboriginal law, Wet’suwet’en people are also members of several different bands under the Indian Act, each with their own elected government. There is an extensive public record going back well over five years documenting the efforts made by the BC government and Coastal Gaslink to engage with the Wet’suwet’en on the approval processes for the pipeline, including potential route alternatives through their traditional territory. These efforts were focused primarily on Wet’suwet’en hereditary chiefs, but also included the elected governments of the Indian Act bands. Coastal Gaslink ultimately signed agreements with each of the elected governments of the bands to support the construction of the pipeline.

Despite these efforts, the Unist’ot’en remain vocally opposed to the pipeline. It is their right to do so, but the Unist’ot’en do not speak for all Wet’suwet’en people. More importantly, simply disagreeing is not enough. We have clear and established legal mechanisms to protect Indigenous rights in Canada. Indigenous peoples have been very successful in using these mechanisms to stop unwelcome resource projects. But the Unist’ot’en have never taken any steps to legally resolve their concerns about the pipeline, preferring instead to simply physically block the project. Regardless of your view of pipelines and resource development in Canada, we cannot as a society condone the actions of a small group of people that have legal remedies available to them but choose not to exercise them.

Getting the balance right is hard and we often get it wrong. There is no question that we have to get better – both from the perspective of Indigenous peoples and also from the perspective of a country that someone might actually want to invest in. But it undermines the seriousness of the debate to boil down the approval of resource projects to the simple rhetoric of Indigenous consent. There are no rights, including Indigenous rights, that are absolute in a democratic and diverse society like Canada. We will always have conflicts and the need to balance interests. When we disagree, we need good rules and processes that allow us to move forward. There are projects that can and should be built in this country. We need to separate the noise from the facts.

-Sam Adkins

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