B.C. mulls potential promise and pitfalls of UNDRIP

UN declaration could be the path to Indigenous reconciliation – or legal quicksand

Image: Joey Podlubny/JWN

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) has been formally adopted in B.C.

Whether it will be the key to reconciliation with Indigenous people or a legal labyrinth that ends up conflicting with Canadian constitutional law is a matter of some speculation.

At this point, in B.C. at least, it appears to be more of a mission statement than law, and for the rest of Canada UNDRIP is still something of a riddle – one that has stumped some legal experts, including a former Supreme Court chief judge.

Should the federal government also pass UNDRIP legislation, the first question may be whether B.C.’s own implementation of UNDRIP harmonizes with the federal version.

Bill 41 – which implements UNDRIP in B.C. – was passed in the B.C. legislature two weeks ago. It passed unanimously.

It will still require a cabinet order to put it into effect. And while it is intended to inform policy, it is not a law or international convention or treaty.

“Bill 41 doesn’t give the UN declaration itself the force of law and doesn’t create any new laws and new rights,” Scott Fraser, minister of Indigenous relations and reconciliation, said during a lengthy debate at third reading.

Basically, Bill 41 requires that all laws in B.C. are consistent with UNDRIP.

UNDRIP also contains a clause that some have interpreted as a potential veto for First Nations opposed to development in their traditional territories. However, a number of Indigenous leaders and lawyers have taken great pains to explain that the “free, prior and informed consent” discussed in UNDRIP is not a veto any more than the “consent” referenced in a number of Supreme Court of Canada decisions on Indigenous rights and title can be interpreted as a veto.

At least one expert thinks that some First Nations may be under the impression that “consent” does, in fact, mean “veto.”

“It says ‘consent,’” Robin Junger, a lawyer specializing in Indigenous law, said at a recent presentation on Indigenous reconciliation sponsored by McMillan LLP. “And if I was a First Nation negotiating anything related to this, I would believe consent means consent and no means no.”

Despite the concerns that have been raised about Bill 41, Junger suggested that no politician would dare vote against it.

In B.C., that may be because MLAs have been persuaded that UNDRIP, as enacted by Bill 41, will be nothing more than a high-level guidance document for policy-makers.

Even so, it may raise legal questions that ultimately may have to be resolved by the courts – questions such as one posed by Ellis Ross, a Liberal MLA and former chief of the Haisla Nation: “Can somebody tell me what happens when the Crown is at the table with three or four different First Nations, and three First Nations agree but one doesn’t?”

Ross said he never got a satisfactory answer to that question.

The extent to which UNDRIP will inform policy decisions, and to what extent it may conflict with Section 35 of the Canadian Constitution or previous Supreme Court decisions, is the matter of some debate.

“If you know what it means, maybe you can talk to former Supreme Court of Canada Justice John Major and explain it to him, because he doesn’t,” Junger said. “Nor do I.”

Major had raised questions about the federal government’s attempts to enshrine UNDRIP through Bill C-262, which ultimately died in the Senate.

Jody Wilson-Raybould – then Canada’s minister of justice and attorney general – told the Assembly of First Nations in 2016 that UNDRIP was “unworkable” within Canadian law.

Despite the opinion of his former attorney general, Prime Minister Justin Trudeau has promised to once again try to implement UNDRIP federally. Asked if he thought that a minority government and “fractured Senate” will be able to pass UNDRIP this time, Junger said he thinks it can.

“I would think that if there is one bill that nobody will dare vote against, it’s this one,” Junger said.

Dwight Newman, Canada Research Chair in Indigenous rights in constitutional and international law at the University of Saskatchewan, told Business in Vancouver that the B.C. government has addressed his main concern about the federal Bill C-262, although he expects Bill 41 will present its own challenges in interpretation.

“Bill 41 is different from Bill C-262 in not having the operative section C-262 had that said UNDRIP immediately ‘has application in Canadian law,’” Newman told BIV .

“Many of the concerns I expressed on C-262 were about that section of the bill, which I thought had the potential to see the courts being immediately asked to apply UNDRIP in unpredictable ways.

“Bill 41 sets up a complex process where different interpretations of parts of UNDRIP will have to be considered as they work their way through adjusting legislation in British Columbia.”

It is worth noting that the BC Chamber of Commerce recommended that UNDRIP be used as a basis to reform B.C. laws with respect to Indigenous relations, with the aim of achieving more certainty for business.

But if Bill 41 merely enshrines UNDRIP as a kind of high-level guidance document, as opposed to creating new laws, and if it does not grant First Nations any kind of veto powers, it begs the question of why so many First Nations leaders feel so strongly about its adoption.

“UNDRIP is vital because it expresses basic human rights norms – including the Universal Declaration [of] Human Rights – in specific context of Indigenous Peoples,” said Douglas White III, who is a lawyer, a Snuneymuxw First Nation band councillor and the author of a recent 92-page analysis of the legal definitions of “consent” within the context of UNDRIP and Canadian law.

“As such, it speaks to norms Canadians have long accepted for all peoples, but have failed to apply to Indigenous Peoples. This is why the Truth and Reconciliation Commission said we need to use it as the framework for relations within Canada.”

In his paper, White points out that the Supreme Court of Canada has already defined the concept of “consent” in a number of legal precedents, such as the Tsilhqot’in decision, and yet has made it clear that that does not translate into unconditional veto powers for First Nations.

“The Supreme Court of Canada has not explicitly considered terms such as ‘free,’ ‘prior’ and ‘informed’ in relation to consent,” White writes. “However, Canadian law has evolved through development of the duty to consult and accommodate such that all of these elements can be assumed to be a part of the domestic understanding of consent.”

Although Ross and Mike de Jong raised questions about Bill 41 that Fraser sometimes struggled to answer, both Liberal MLAs ultimately voted in favour of its passage, as did every other member of the legislature.

Ross said his main concern now with Bill 41 and UNDRIP is that it may be invoked by government as a pretext to oppose certain projects.

“Nothing really should change, if we believe what the B.C. government said in the legislature,” Ross said. “But it’s yet to be seen if government will delay decisions or make decisions on politically incorrect projects like fish farms or Trans Mountain expansion and use this bill as their reasons.” SOURCE



B.C. makes history with legislation to implement UN declaration on Indigenous rights

“Most simply put, it’s about coming together as governments, as people seeking to find common ground,” said Terry Teegee, Regional Chief for the Assembly of First Nations in B.C.

Chief Terry Teegee leaves the legislative assembly joined by, from left, Premier John Horgan, B.C. Green party Leader Andrew Weaver and B.C. Liberal Leader Andrew Wilkinson after an announcement about Indigenous human rights being recognized in B.C. with new legislation, in Victoria on Oct. 24. CHAD HIPOLITO / THE CANADIAN PRESS

B.C. made history Thursday as the first province in Canada to introduce legislation aimed at adopting the UN Declaration on the Rights of Indigenous Peoples, which left local First Nations and industry hopeful for an improvement to the status quo.

The legislation, introduced by Minister of Indigenous Relations and Reconciliation Scott Fraser, mandates that government bring its laws and policies into harmony with the aims of the declaration, often referred to by its acronym, UNDRIP.

On the order paper as Bill 41, the legislation doesn’t set out a timeline for completion, but Fraser said it “is about ending discrimination and conflict in our province, and instead ensuring more economic justice and fairness.”

“Let’s make history,” he told the legislature Thursday, in front of an audience that included leaders from the First Nations Leadership Council.

There will be those who find any change difficult “because they’ve grown accustomed to the status quo,” said Indigenous leader Bob Chamberlin, but they shouldn’t fear UNDRIP’s principle of Aboriginal consent and shared decision-making for resource development.

“Right now, we essentially have one-size-fits-all consultation, which doesn’t work,” said Chamberlin, a former first vice-president of the Union of B.C. Indian Chiefs and recent unsuccessful NDP candidate on Vancouver Island in the federal election. “If it worked, we wouldn’t be in the courts (with) everything being dragged out.”

UNDRIP requires governments to obtain “free and informed consent” from Indigenous groups before approving any project affecting their lands or resources, but Fraser said that doesn’t equate to a veto over development.
CP-Web. First Nations Speaker Cheryl Casimer speaks to the press after Premier John Horgan announced Indigenous human rights will be recognized in B.C. with new legislation during a press conference at the provincial Legislature in Victoria, Thursday, Oct. 24, 2019. CHAD HIPOLITO / THE CANADIAN PRESS

B.C. Premier John Horgan echoed Fraser, stating that neither the legislation nor the UN declaration itself includes language that would grant a veto over resource projects. For industry, the proof of success on that point will have to come from implementation, said Greg D’Avignon, CEO of the Business Council of B.C.

“Whenever you bring something new in, there is always a difference in perception and interpretation of what it is and what it isn’t, D’Avignon said. “Government has been clear today that this is not a veto and that they retain their right for decision-making and we will hold them to that obligation.”

Indigenous leaders addressed the concern in speeches to the legislature.

“Some people will oppose this law because of their fears about what an era of mutual consent means,” said Terry Teegee, regional chief for the Assembly of First Nations in B.C., adding that making history “is not for the faint of heart.”

“I want to say strongly and clearly here: This declaration law is not about providing any government with veto rights,” Teegee said.

Consent is about a process to achieve agreement, he said, which “is the future.”

“Most simply put, it’s about coming together as governments, as people seeking to find common ground,” Teegee said.

And if that is implemented well, B.C.’s mining industry is cautiously hopeful that such decision-making will “enable greater certainty and predictability on the land base,” according to Michael Goehring, CEO of the Mining Association of B.C.

Goehring said his association’s members have long been “advancing economic reconciliation” through agreements and partnerships with First Nations that reflect UNDRIP’s principles. So the industry welcomes a chance to provide input to government and Indigenous leaders on the plan and implementation of the legislation.

“The truth is, the status quo has not engendered confidence in British Columbia’s economic future, nor has it served British Columbians or B.C.’s Indigenous communities,” Goehring said. “So we approach this bill with cautious optimism.”

Fraser said the legislation was drafted after consultation with a wide range of groups and organizations, including Indigenous, business and government leaders. The declaration contains 46 articles, including that Indigenous Peoples have the right to self-determination, which means they can determine their political status and pursue economic, social and cultural development.

CP-Web. First Nations Speaker Cheryl Casimer speaks to the press after Premier John Horgan announced Indigenous human rights will be recognized in B.C. with new legislation during a press conference at the provincial Legislature in Victoria, Thursday, Oct. 24, 2019. CHAD HIPOLITO / THE CANADIAN PRESS

Another article calls for an independent process to be established to recognize and adjudicate Indigenous Peoples’ rights pertaining to their lands and resources granting them the right to redress or compensation for traditional lands that have been taken, used or damaged without their free, prior and informed consent. It’s unclear what this will practically look like in B.C., which has almost no treaty settlements with its over 200 First Nations. Horgan said the past is littered with broken promises to Indigenous Peoples, but the law can bring a new future.

“This bill is important because Indigenous rights are human rights,” he said. “We all want to live in a province where the standard of living for Indigenous Peoples is the same as every other community in the province.”

Chamberlin said the province, First Nations and B.C.’s salmon-farming industry used a shared-decision-making process for a deal over salmon farming in the Broughton Archipelago that could be a model for Bill 41’s implementation.

“People are going to say this is time-consuming and expensive,” Chamberlin said. “Well, I think going to court is time-consuming and expensive, and leads to no certainty whatsoever. It doesn’t advance reconciliation, it just hardens the lines, and I think after 150-odd years in Canada we’ve had enough hard lines.” SOURCE


Consultation or consent?

What is adequate consultation? When has consent been given?

You may have heard the news that the Federal Court of Appeal will soon hear six legal challenges to the approval of the Trans Mountain pipeline project. The challenges will once again focus on the “consultation” with Indigenous peoples directly impacted by this project.

Before taking power in 2015, Justin Trudeau promised his government would not only consult First Nations, but would obtain consent from communities before projects like this one could proceed.

There has never been clear consent for the Trans Mountain pipeline.

The Federal Court has already ruled once that public consultation for this 1,150 km pipeline expansion, which would take bitumen from the tar sands in Alberta to British Columbia for export, was inadequate, and it overturned the original approval for the project.

The federal government, now owner of the pipeline thanks to the use of more than $4.5 billion of public money (with another $9.3 billion expected to be spent on construction costs), started a second consultation process in June. But when the government announced it was approving the pipeline project again, Indigenous peoples argued that the outcome of that consultation was predetermined. They say the government, as owner of the pipeline, has a financial interest that overshadows the public interest.

We should all ask: what is adequate consultation? When has consent been given? Should consultation that simply gathers the feedback people provide be accepted, or does the government have a responsibility to act on when impacted Indigenous nations say no?

These legal appeals are examples of the lengths Indigenous peoples need to go to prove their rights are being trampled and how difficult it is to hold the government and corporations accountable to the law. On the flip side, land and water defenders are being unjustly jailed and fined for simply voicing their dissent. This is a double standard of law enforcement that is difficult to reconcile.

The court ordered the legal challenges be heard quickly and rulings are expected within months.

Thanks to the generous support of people like you, the Council of Canadians is working in solidarity with Indigenous peoples and concerned people and communities to stop this pipeline.


Using Police to Belittle Indigenous Rights


Using Police to Belittle Indigenous Rights

Tell those police forces to turn around and face the other way and stand on guard to protect the rights it promised to respect.” —Murray Sinclair

Image result for senator murray sinclair reconciliationSenator Murray Sinclair: “Indigenous land sovereignty is a term you rarely heard in law school when I attended in the 70s, and that continues today.”

I have been giving some thought to the conflicts that arise whenever pipeline expansion or developments occur in a manner that affects Indigenous people and their territories.

One of the major issues centers on the use of police forces to enforce court orders.

The police decision to view Indigenous resistance to corporate encroachment on their lands, especially in the face of court orders, as acts of terrorism, almost automatically results in a decision by police to see the need to take military-type action to overcome Indigenous protests. Such a heavy handed approach violates the need for this country to come to terms with its historical ignorance of and attitude toward the territorial rights of Indigenous peoples that stem from the racist doctrines of discovery and terra nullius.

Such police tactics seem to enjoy a measure of acceptability on the basis that the public are told that people are wrongfully disobeying a court order and should not be allowed to get away with it. Yet even when there is no such order and there is such police behaviour, the level of public denunciation seems muted. Case in point include the police tactics during the G20  Summit in Toronto in 2010.

Legal education is still weak in the area of conflict over Indigenous rights. Courts still see pipeline expansion and corporate development in Indigenous territory as a property issue and not a question of sovereignty, often because that is the way it is originally presented to the courts by corporate lawyers seeking interim injunctions. Judges are either incapable of, or unwilling to, say, “Just hold on here, what about the sovereign rights of the Indigenous people over whose lands you want to do this?”  No one brought such an application before me when I was a judge (we didn’t get a lot of them in Manitoba) but if they had, I would have asked that question.

Indigenous land sovereignty is a term you rarely heard in law school when I attended in the 70s, and that continues today. What’s even more concerning is that it is not discussed in law schools or legal circles as one of the major unresolved legal issues of the day, and on what basis it might be or should be resolved. When it is discussed in courts, generally, it suffers from a weak grasp of the theoretical basis for Indigenous rights as sovereign rights and lapses into an argument over property. We still have a long way to go.

The Royal Proclamation of 1763 recognizes the sovereign and territorial rights of Indigenous people including the right not be disturbed therein or to lose those rights without consent. Courts have been reluctant to see the Proclamation as being protective of Indigenous territory where treaties do not exist and rights have not been ceded. Yet the Royal Proclamation remains as a part of the Constitution of this country. It stands alone and is not part of the “existing” limitation found in Section 35 of the Constitution Act 1982. The Federal Government’s enhanced power position and fiduciary responsibility requires it to defend those principles. I am personally disturbed at the state’s willingness to use police to enforce the property rights of corporations against the unceded sovereign rights of Indigenous people, even in the face of a court order.

They should be telling those police forces to turn around and face the other way and stand on guard to protect the rights it promised to respect. SOURCE

First Nations in B.C. launch new legal appeal against Trans Mountain pipeline expansion

Chief Leah George-Wilson of the Tsleil-Waututh Nation announced at a press conference in Vancouver that they have officially launched their appeal of the approval of the Trans Mountain pipeline.

VANCOUVER—Several First Nations led by Tsleil-Waututh have again launched an appeal against the approval of the Trans Mountain pipeline expansion, alleging that Canada did not conduct a fair consultation with First Nations.

“The federal government’s approval of the pipeline is unlawful and must be quashed,” said Chief Leah George-Wilson of the Tsleil-Waututh Nation at a news conference in Vancouver. She was joined by representatives from five other nations that have filed for a judicial review.

In June, the federal government approved the expansion project for a second time. Last summer, the Tsleil-Waututh Nation and others won a major court case that forced federal authorities to reconsider the environmental risks of the increased tanker traffic associated with the project and undertake further consultation with Indigenous communities.

George-Wilson said it “feels like déjà vu” to announce yet another application for appeal to get a fair consultation process.

“Two and a half years ago, we were here announcing our latest court challenge, which we won,” she said. “Canada had an opportunity to get it right and they did not. We have not seen any significant difference in the consultation process, and in some ways it was worse.”

The First Nations maintain that building the $9.3-billion pipeline expansion is a constitutional violation, “primarily around the failure to satisfy the duty to consult, accommodate and seek consent from First Nations, and regulatory legal errors by the National Energy Board.” SOURCE

Want to help stop the Trans Mountain pipeline and tankers? We’re launching Pull Together, Round 3. But we can’t do it without you!

Yesterday, a joint legal challenge was filed by the Tsleil-Waututh Nation, Squamish Nation, Ts’elxweyeqw tribes, Shxw’owhamel Nation, Coldwater Indian Band and Stk’emlupsemc te Secwepemc Nation.

These Indigenous Nations are challenging (again) the federal government approval (again) of the Trans Mountain tarsands pipeline and the 700% increase in tanker traffic it will bring to the coast.

We’ve been here before. And we can do it again.

Yesterday, we heard leaders of these Nations share how this federal decision was the result of another hasty and deeply flawed review process that failed to satisfy the duty to consult, accommodate and seek consent from Indigenous Nations.

Chief Leah George-Wilson of Tsleil-Waututh Nation said, “It was clear that Canada had already made up their mind as the owners of the project⁠—they repeated many of the same mistakes again.”

We heard how the project would involve the digging up of burial grounds and sacred sites in Shxw’owhamel and Stk’emlupsemcte Secwepemc territories. It puts the Coldwater Band’s drinking water at risk. These are just a few of the many harms this project will create on the ground.
So the Nations are going back to court. I’m humbled by their leadership and their commitment to defending their lands and waters.


Unist’ot’en Demand Stop Work Order After Cultural and Indigenous Usage Sites Bulldozed

STATEMENT by Wet’suwet’en Access Point on Gidumt’en Territory: Coastal GasLink and RCMP Violating Gidimt’en Sovereignty and Own Agreement.

Image result for Wet'suwet'en Access Point on Gidumt'en Territory RCMP traplines

RCMP and miliary invasion of Wet’suwet’en territory. Photo courtesy: Michael Toledano / unistoten.camp

January 28, 2019 – Over the weekend Coastal GasLink willfully, illegally, and violently destroyed Gidimt’en cultural infrastructure and personal property on Gidimt’en territory without our consent.

This was our infrastructure to be on our land and exercise our land-based culture. Coastal GasLink’s attack on our cultural practices – with RCMP’s active complicity – is an attack on our sovereignty and an attack on our way of life.

In full: https://bit.ly/2FVoFDb

Indian Act to blame for pipeline gridlock in northern B.C.: federal minister

Canada’s Indian Act blamed for creating a gridlock in northern British Columbia where some hereditary clan chiefs say a liquefied natural gas pipeline doesn’t have their consent.


VANCOUVER — Canada’s minister of Crown-Indigenous relations is pointing her finger at the Indian Act for creating a gridlock in northern British Columbia where some hereditary clan chiefs say a liquefied natural gas pipeline doesn’t have their consent.

Carolyn Bennett would not say whether she believes the hereditary chiefs of the Wet’suwet’en First Nation have jurisdiction over the 22,000 square kilometres they claim as their traditional territory, saying that it is up to each community to determine its leadership structure.

But she says the situation is an example of why the federal government is working to increase First Nations capacity for self-governance, including a new funding program to rebuild hereditary structures. MORE

The Dzawada’enuxw First Nation files lawsuit against Canada on fish farms dispute

Dzawada’enuxw First Nation community members, including matriarchs, elected and traditional leaders, and artists, were in Vancouver Thursday to announce their decision to sue the Government of Canada.

At a press conference on Jan. 10, 2018, Chief Willie Moon, traditional leader of the Dzwada’enuxw Nation said the ‘zero tolerance’ policy for fish farms in their waters comes from the direction of their matriarchs and membership. Photo by Michael Ruffolo

The First Nation, from Kingcome Inlet, B.C., filed a statement of claim in federal court in Vancouver on Thursday, arguing the federal government authorized licenses for fish farms operating in their waters, without their consultation or consent.

The claim says the fish farm operations pollute and poison wild salmon and infringe on the nation’s constitutionally protected rights. Their case is the first ever rights-based challenge to the federal licensing process that fish farm companies rely on to operate along the coast of B.C. SOURCE