If passed, the new law will make B.C. the first government in Canada to codify the United Nations Declaration on the Rights of Indigenous Peoples. Once implemented, it will significantly alter the way major resource projects are approached on Indigenous territories
From left to right: Terry Teegee, regional chief of the B.C. Assembly of First Nations, Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, and his wife, Joan Phillip, a notable environmental and Indigenous rights advocate. Photo: Province of B.C. / Flickr
With a wavering voice, Premier John Horgan spoke to the historic moment as the landmark Bill 41 was introduced in the legislature on Thursday.
“It is truly a great honour to stand in this chamber alongside Indigenous elders, leaders and people to introduce this bill,” the Premier said.
“I’m determined to walk a path of reconciliation.”
“We can have a better future than our past.”
What is UNDRIP and what does it mean for Canada?
Set out in 46 Articles, the declaration calls on state governments to engage with Indigenous nations, communities and cultures in such a way that bolsters the preservation of traditional territories and ways of life.
“It has the capacity to be transformative,” said Merle Alexander, legal counsel for the B.C. Assembly of First Nations and member and hereditary chief of Kitasoo Xai’xais First Nation. “The challenge will be: how do we implement it?”
Alexander, who co-drafted the legislation, said the act is designed to be a framework for reconciliation.
“The potential of this legislation is to create a new baseline,” Alexander told The Narwhal.
“When you enable government to enter into consent-based agreements, it could radically shift almost all government relationships.”
A new era of mutual consent
A major question about B.C.’s incorporation of UNDRIP centres around the question of “free, prior and informed consent” and whether or not it amounts to granting Indigenous peoples the power to veto projects that affect traditional territories.
“Nowhere in the act, nowhere in the declaration, do the words ‘veto’ ever come up. For the first part, it’s fear-mongering,” Alexander said.
Article 32 of UNDRIP grants Indigenous peoples “the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.”
It also says governments “shall consult and cooperate in good faith” with Indigenous peoples through their own representative institutions, in order to obtain their free and informed consent prior to the approval of “any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”
But Alexander said it isn’t an accurate framing of the issue to say UNDRIP will essentially grant nations the power to override government and industry.
“Veto is about overriding jurisdiction and overruling governments, whereas consent is about agreement and coming together and working through problems and finding solutions,” he said.
“In some ways consent and veto are polar opposites to each other.”
Major projects — including the Site C dam, the Trans Mountain pipeline expansion and extensive fracking operations in northeastern B.C. — have been widely criticised for being approved by government without the “free, prior and informed consent” of affected Indigenous communities and nations.
First Nation communities regularly find themselves in the position of waging legal battles against projects after they are approved, when major impacts to land and traditional practices can no longer be prevented.
From the legislature floor, Terry Teegee, regional chief of the B.C. Assembly of First Nations, spoke directly to the claim the new legislation will in effect give Indigenous peoples ‘veto powers.’
“To bring this to a hard point, some people will oppose this law because of their fears of what an era of mutual consent means. There is fear in the idea of sharing power and jurisdiction. I want to say strongly and clearly here this declaration law is not about providing any government with veto rights.”
“Consent is about agreement. It is a process to achieving and maintaining agreement … about respecting our laws as equals and as partners,” Teegee said.
“Consent is the future and most simply put, it’s about coming together as governments, as people seeking to find common ground. Although consultation law has empowered many First Nations in B.C., it has done little to create legal certainty.”
Too often the Crown does not engage in good faith consultation and negotiations and First Nations are turning to the courts to resolve these issues, Teegee said.
“One of the greatest uncertainties for project development in B.C. is not knowing if a project has the consent of affected First Nations. Laws that are co-developed … will deliver economic, legal certainty and predictability in this province.”
Teegee said the province has come a long way in respecting Indigenous self-determination and decision-making in recent years, pointing to very recent but ultimately rejected plan to turn a sacred lake in Tsilhqot’in territory into a tailings pond for a mine.
The task of adhering to the principles of UNDRIP presents a unique case in provinces such as B.C., where the vast majority of the landscape is considered unceded Indigenous territory, meaning treaties haven’t been signed.
Unceded land in B.C. is often referred to as Crown land, although that designation can be misleading because much of the province falls within traditional territories that have not been ceded but have not been claimed under title rights (as in the case of the Tsilhqot’in Nation).
Major clashes over natural resource projects, such as recent blockades to prevent the construction of the Coastal GasLink pipeline on traditional Wet’suwet’en territory, occur on unceded lands where Indigenous peoples have been guaranteed the right to fish, hunt and practice their traditional ways of life in perpetuity.
Forest management a natural place to start
Jack Woodward, an Aboriginal rights lawyer who served as legal counsel on the landmark Tsilhqot’in title case, said while Aboriginal rights and treaty rights are governed by the constitution, the province can look for ways to support reconciliation within its own jurisdiction.
He pointed to the way old-growth forests are being managed by BC Timber Sales, saying it is a matter of policy, not legislation.
Old-growth forests are a valuable heritage resource for First Nations because they contain the last archaeological record of pre-contact through culturally modified trees, Woodward said.
“That’s what UNDRIP speaks to and what’s referred to in the proposed legislation but the actual process on the ground is what is going to matter and they’re going to have to give way to make significant change.”
Alexander said the process of prioritizing where to start on UNDRIP implementation will begin now, but he agrees forestry is a logical place for improvement.
“It does make sense that forestry might be a very tangible and smart place to start,” he said. “The Jenga game has sorta collapsed a bit on forestry and it needs to be re-built.” MORE