Consultation, Accommodation, and the Right to Say “No”: How Aboriginal Rights Help to Protect the Environment

Allen Brett Campeau is a law student at McGill University and an Associate Editor with the McGill Journal of Sustainable Development Law. He studied the impacts of climate change on Arctic terrestrial ecosystems during his BSc and MSc degrees in Geography and Biology. You can connect with him on Twitter here: @ABCampeau

Canada’s commitment to tackling climate change and pursuing reconciliation with Indigenous Peoples is often challenged by deep-seated economic interests in fossil fuel development. The Trudeau Government has aimed to strike a balance between the economy and the environment while touting a new “Nation-to-Nation” relationship with First Nations, Inuit, and Métis people. It has thrown its support behind both the Paris Agreement on climate change and the Declaration on the Rights of Indigenous Peoples (UNDRIP), which would grant Indigenous Peoples greater say over resource development on their traditional territories. However, the Government also advocates resource-driven economic development and support for the ailing oil industry in Alberta. We are told that new tar sands infrastructure, like the Kinder Morgan Trans Mountain pipeline expansion, can be built while still honouring our climate change commitments and the principles of UNDRIP. This is a delicate balancing act for the Government, but the power and influence of the oil industry has a way of tipping the scales. Can this imbalance be remedied by implementing UNDRIP and better protecting Aboriginal rights?

Rally against the Kinder Morgan Trans Mountain pipeline expansion on Burnaby Mountain (November 17, 2014). Attribution: Mark Klotz.

On May 10, 2016, Canada officially removed its objector status to UNDRIP, almost 10 years after it was first adopted by the UN General Assembly. It was a watershed moment, of sorts, for our country, which has long struggled with colonialism and its ongoing consequences. After making the announcement, Indigenous and Northern Affairs Minister Carolyn Bennett received a rare standing ovation at the UN. The move was also celebrated here in Canada, with Perry Bellegarde, the National Chief of the Assembly of First Nations, hailing it as a “historic day”. This was, after all, the first step towards actually implementing UNDRIP, which the Trudeau Liberals promised to do in their 2015 election platform.

Canadian governments have expressed reservations about UNDRIP because of perceived conflicts with existing Canadian legislation, like the Indian Act, and with the Canadian constitutional framework. Section 35 of the Constitution Act, 1982 recognizes and affirms Aboriginal rights, but it does not define them, leaving issues of uncertainty to be resolved in the courts. Of particular relevance to climate action and resource development is the so-called “duty to consult”, established in Canadian case law, which requires the Canadian government to consult and accommodate Indigenous Peoples on matters that affect their rights. However, there currently exists no constitutionally protected Aboriginal right to be consulted. Nor is there any requirement for the government to obtain the consent of an Aboriginal group before approving developments on their territory. This is perhaps the most important – and politically controversial – difference between Canadian law and UNDRIP, since its Article 19 may be interpreted as compelling States to “obtain [the] free, prior and informed consent [of Indigenous Peoples] before adopting and implementing legislative or administrative measures that may affect them.” The full implementation of UNDRIP would require recognition of this right in Canadian law, potentially giving Indigenous Peoples a “veto power” – a right to say “no” – over developments on their territory.

Idle No More protesters in Ottawa. Attribution: Moxy.

The Trudeau Liberals have not acknowledged anything approaching an Aboriginal veto power in their recent approvals of pipelines and other fossil fuel projects. In fact, the Government appears to be backpedaling on its promise to implement UNDRIP and has largely ignored Aboriginal concerns in the pipeline and climate change debates. Less than two months after declaring Canada’s unconditional support for UNDRIP, Minister Carolyn Bennett expressed scepticism of an Aboriginal veto power and stated that development projects “in the national interest are to be considered.” This position is in keeping with recent jurisprudence on Aboriginal rights and title in Canada, like Tsilhqot’in Nation v British Columbia (2014), which set out a test allowing the Crown to override Aboriginal title in certain circumstances. Put simply, the Government can approve a project that occupies or traverses Indigenous lands, despite opposition, if they check all the boxes on the “duty to consult” and show a “compelling and substantial public interest” in the project. The promise of jobs in the oil patch and the refrain that “we need to get our resources to tidewater” could allow the Government to justify its December 2016 approval of the Kinder Morgan Trans Mountain pipeline expansion. And if there was any doubt about the Government’s position on UNDRIP’s Article 19, Prime Minister Trudeau stated “No, they don’t have a veto” when asked about First Nations that continue to oppose the pipeline.

The Government’s approval of the Trans Mountain project was a welcome boost for the oil industry, but raises serious doubts about its commitment to climate action and reconciliation with Indigenous Peoples. Charlene Aleck, an elected Councillor with Tsleil-Waututh Nation at the heart of the pipeline debate, called the political maneuvering of the Trudeau Liberals a “fundamental betrayal.” Her First Nation is one of several pursuing legal action against the Government, arguing that they were not properly consulted about the project. The outcomes of these lawsuits are far from certain given the rapidly evolving nature of Aboriginal law in Canada, but recent jurisprudence suggests a growing willingness to recognize Aboriginal title and land rights. The Government’s formal recognition of UNDRIP presents an opportunity for the courts to strengthen protections for Aboriginal rights and entrench previously unrecognized rights, perhaps even the right to say “no” to developments on Indigenous lands. Indigenous communities stand to gain a stronger hand in development planning and an even more important leadership role in Canadian climate policy, with the likely upshot being a healthier planet for all of us.

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