Horgan’s Pipeline Push Betrays His Reconciliation Promise


‘Is this a scorecard of how many First Nations say yes compared to those who say no? Is that how we measure rights and title?’ Photo by Michael Toledano.

It’s the same old story Indigenous Peoples have heard for generations.

B.C. Premier John Horgan tells the public “the rule of law” demands the Coastal GasLink pipeline go ahead. Permits are in place, and the courts have approved construction.

The opposition of Wet’suwet’en hereditary chiefs is not important to Horgan, as he points to 20 First Nations that have signed agreements to allow the pipeline and negotiated benefits. The five clans who have not agreed don’t seem to count.

Is this a scorecard of how many First Nations say yes compared to those who say no? Is that how we measure rights and title?

Are we not in a new era of reconciliation? A new decade? The decade of the enactment of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) Act in this province?

What would I expect from the premier in this new era, in this particular situation when he needs credibility with First Nations if his commitment to UNDRIP is to be taken seriously?

I would expect the premier to look back on past decisions and ensure they were made in the spirit of UNDRIP — including approval of the Coastal GasLink pipeline. His party was making political promises to uphold UNDRIP long before the NDP were in government.

In the 2014 Supreme Court of Canada Tsilhqot’in decision, the justices stated clearly that provincial and federal governments need to be prepared to cancel already approved projects if First Nations establish title to the land and oppose them.

“Once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title-holding group going forward,” the judgment says. “For example, if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing.” (Emphasis added.)

The court also sets out the correct path for governments.

“Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.

Horgan should heed the advice of the Supreme Court of Canada and revisit the decision to proceed with the pipeline, especially in light of his commitments to resolve land titles, implement UNDRIP and advance reconciliation. The court advised getting the consent of Indigenous people; that’s what he should do.

The right to self-determination

Furthermore, UNDRIP is very clear that all Indigenous Peoples have the right to self-determination. Self-determination means that Indigenous Peoples will freely determine their own political status. That means governments and companies cannot decide which is the right governing body for a nation. That is a matter for Indigenous Peoples.

The Indian Act imposed a system of government on First Nations, attempting to dismantle a governance system that had functioned for centuries. It made chiefs and councils the owners of the land and gave them total power.

But traditional government systems have not been eradicated.

Wet’suwet’en hereditary chiefs are opposing the pipeline, and some are questioning their legitimacy.

Wet’suwet’en hereditary chiefs launched the lawsuit and took the issue to the Supreme Court of Canada.

Surely this should indicate to the government and companies who has title and rights to the land. And surely, they should recognize that it is up to the Indigenous people to determine this, not the provincial government. Clearly the hereditary chiefs must be part of this decision on whether the pipeline proceeds.

Free, prior and informed consent

Free, prior and informed consent has been and will continue to be an issue in relation to UNDRIP, because governments and Indigenous people do not agree on its meaning.

Horgan’s government has said it was waiting for the UNDRIP legislation to pass before working to reach agreement about what free, prior and informed consent means. He has not tried to work this out with First Nations in advance, even though that would have been prudent.

We have heard Horgan and Minister of Indigenous Relations Scott Fraser say that the requirement for free, prior and informed consent does not give First Nations a veto over projects in their territories.

Then what is consent under UNDRIP? Is it a simple yes or no? Does it give a veto because no means no? These are good questions that must be answered by Indigenous Peoples and governments.

The Wet’suwet’en hereditary chiefs are saying no. No consent. No project. No access. Not on their lands.

In criminal law, a woman can say no to a man and no means no. If he proceeds against her wishes, he can be guilty of a crime. Why doesn’t the requirement for free, prior and informed consent give the same right to Indigenous Peoples?

So what does consent mean to this B.C. government? That they have the final say? That they can decide no does not mean no. That the status quo continues when it comes to development?

That would not reflect a new era of reconciliation, or the principles of UNDRIP. That would be the Crown asserting jurisdiction over First Nations laws and title once again.

Sending in the RCMP to remove protesters is also the same old story — a show of force against defenders of the land who are not armed, who are elders, youth and chiefs. RCMP assert their power under a court order that hasn’t taken into account Indigenous laws.

This pipeline dispute is not new. It has been ongoing for years. That it has not been resolved speaks volumes about the unwillingness of this government to sit down at a table with the hereditary chiefs and talk about why they are opposed and try and resolve differences.

If we are in the era of reconciliation, there needs to be more efforts to come to agreements. If agreements cannot be reached, there needs to be impartial tribunals established to help find those solutions. And if no solutions are found, then there is no project.

If the principles of UNDRIP are being implemented and being placed into laws, the government has to start respecting its provisions now.

For instance, Article 18 gives the Wet’suwet’en the right to participate in any decision-making through their own procedures and law. This has not happened.

Article 26 gives them the right to own, use, develop and control the lands, territories and resources they possess through ownership, and says the state must give legal recognition and protect their lands and resources. None of this has occurred to date, and it doesn’t look like B.C. is even considering it. The government is saying this is Crown land, the company has Crown permits, so therefore the development must happen.

Article 25 gives the Wet’suwet’en the right to strengthen their spiritual relationship with the land, waters and resources in their territories. But if their territory is destroyed for a pipeline, their relationship with their land will also be destroyed.

Article 29 gives them the right to the productive capacity of their territories, and a pipeline does not allow for this.

There are many more articles on implementing laws and protecting sacred and cultural sites that B.C. is violating by continuing with the pipeline project over Wet’suwet’en objections.

These statements by Horgan set back the ambitious, positive agenda set by his government in implementing UNDRIP. They signal to First Nations’ people in B.C. that the government is not serious about the new law.

And they strongly signal trouble ahead as B.C. continues with its status quo agenda that claims government has final say over developments on First Nation title lands, and the requirement for free, prior and informed consent will not be taken seriously.

Many First Nations peoples in this province are hearing Horgan and asking what has changed?

The answer is nothing. B.C. is moving ahead with the government’s economic agenda at the expense of First Nations rights, title and all the requirements set out in the United Nations Declaration on the Rights of Indigenous Peoples.

First Nations people thought we were throwing out the old book and beginning a new one. Sadly, it looks like the same old story. This is not the new decade we were looking for. SOURCE


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‘Rule of law’ isn’t only B.C., Canadian law: Bellegarde

(Perry Bellegarde is national chief of the Assembly of First Nations. APTN file)

Perry Bellegarde is not happy with B.C. Premier John Horgan’s spin on the “rule of law.”

The national chief of the Assembly of First Nations said his members support the “governance and decision-making process of the Wet’suwet’en people. Canada and British Columbia must do the same.”

It’s the second time Bellegarde has involved himself in the pipeline dispute playing out in northern B.C.

Last January the national Indigenous leader told RCMP to stop their violent incursion on Wet’suwet’en traditional territory south of Houston, B.C.

Now Bellegarde said the “rule of law” cited by Horgan Monday as a reason Coastal GasLink construction should continue isn’t only Canadian law.

The “rule of law” includes honouring First Nations laws in their traditional territories,” Bellegarde told APTN News.

“The necessity of respecting those laws and traditions is further underlined by the provisions of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Right now, the federal government and BC government must meet with the Wet’suwet’en leadership and immediately work to resolve this matter through dialogue not violence.”

Horgan, whose NDP are in power thanks to a partnership with the B.C. Green Party, said adopting UNDRIP doesn’t give Indigenous opponents a veto over the multi-billion-dollar project to ship natural gas to foreign markets.

“I don’t understand why we’re having this conversation,” agreed Ellis Ross, a former Haisla chief in northern B.C. and now Liberal MLA.

Two types of law

“We don’t have two types of law…We can’t pick and choose which law we’re going to abide by today and just decide that, ‘OK, some certain groups of people can define their own laws.’”

But Kate Kempton, an Indigenous rights lawyer in Toronto, said Canada could absolutely have two parallel laws.

“Unless and until Crown governments recognize that or accept that a space needs to be carved out for an equal status Indigenous legal realm in Canada…you’re going to end up with a very imperfect and unfair set of answers.”

Kempton said New Zealand and Australia have made such a space.

“Suppose an Indigenous law was as applicable here as Canadian law. That would mean that Coastal GasLink would have to get a set of permits from the Crown government, but they’d also need a set of permits from the relevant Indigenous government.”

Kempton said Wet’suwet’en pipeline opponents are staring down colonial governments and corporations as part of Indigenous self-determination.

“What the Crown governments have to do instead of continuing to fund poverty, they need to find a way for real economic support in the trillions of dollars to go toward Indigenous governments to figure out for themselves how self-determination, self-governance is going to work.”

Then, instead of fighting each other in court or at barricades on the ground, Kempton said they would know “what is our government, who’s in it and who’s going to decide when there’s an external project within our Nation yes or no” – instead of elected versus hereditary versus Canadian.

“Right now, the support and structure isn’t there so you end up with this messy situation reflected in this case,” the lawyer added.

Watch Todd Lamirande’s story on the latest from Wet’suwet’en Territory

The ‘messy situation’ in B.C. has attracted the attention of  international and national civil and human rights groups.

The United Nations, Amnesty International, B.C. Human Rights Commission and B.C. Civil Liberties Association all released statements slamming the position of Canada’s elected politicians on Indigenous rights.

“All of your governments have recognized that significant shifts are required to move forward with reconciliation with Indigenous peoples and show full regard for their rights in the Constitution and under international law,” said Amnesty’s English and French secretaries general Alex Neve and France Isabelle-Langlois.

“If promises to do so are not met with concrete action, very much including tough and challenging decisions such as those required here, then the words remain empty.  That is the shameful history that Canada absolutely must leave behind.”

Ross, who supports the pipeline project and the jobs it offers Indigenous communities, was critical of the UN alleging Canada’s resource projects are racist.

“The UN is highly irresponsible in not talking to everybody to get a complete picture of what’s happening here in B.C. over the past 14 years,” he said in a telephone interview Tuesday.

“They took one story out of B.C. and they figured that all the Aboriginals in B.C. are being trampled on and that couldn’t be further from the truth.”

In a replay of last January, RCMP took control of a section of unceded Wet’suwet’en Nation land Monday in what they termed a safety measure.

They are blocking traffic from moving in and out of the narrow Morice West Forest Service Road south of Houston that winds its way through snowy forest land to camps operated by the Gidimt’en and Unist’ot’en clans.

CGL claims camp members interfere with its ability to construct the pipeline and won an interlocutory injunction from a B.C. Supreme Court judge. It said it was up to the RCMP to enforce the injunction.

Preserve the safety

“Our duty is to preserve the safety of everyone involved in this dispute, and to prevent further contraventions to the BC Supreme Court ordered injunction,” said Dawn Roberts, in a release from B.C. RCMP.

“As a result, an access control checkpoint has been established at the 27 kilometer mark of the forestry road. The purpose is to mitigate safety concerns related to the hazardous items of fallen trees and tire piles with incendiary fluids along the roadway, as well as to allow emergency service access to the area.”

The felled trees and tire piles were discovered last week by CGL workers and reported to the RCMP.

“We remain committed to facilitating the ongoing dialogue between Indigenous communities, Coastal GasLink and Government, in the hopes that these efforts will result in a safe and peaceful outcome,” Roberts added in the release.

She said people allowed to pass the police checkpoint were:

-All hereditary and elected chiefs;

-Elected and other government officials;

-Journalists with accreditation from recognised media outlets;

-Persons providing food, medicine or other supplies or services required for the well-being and safety of persons behind the blockades;

-Other persons as approved by the RCMP operations commander or delegate.

“For purposes of safety, all persons entering must indicate their specific destination, estimated time of return and indicate their understanding of the hazards present. Vehicles and persons entering will be logged to ensure awareness of who has entered and safely exited. All other vehicles will be turned away,” the release added.

“All occupants of vehicles exiting the area who were not already spoken to on their way in will be briefly detained per paragraph 10 of the BC Supreme Court injunction, asked for identification, and provided a copy of the court order before they are permitted to go on their way.”

Meanwhile, the interim leader of the B.C. Green Party was not available for an interview Tuesday.

And the president of CGL again asked for a meeting with the hereditary chiefs.

“We believe that by working together, we can address the interests of the Office of the Wet’suwet’en while continuing to provide significant benefits to the Wet’suwet’en and other Indigenous communities,” David Pfeiffer said in a letter posted to the company’s website Tuesday.

The chiefs, who don’t want the pipeline on their unceded territory, were in meetings Tuesday. SOURCE

Terence Corcoran: The Trudeau Liberals will have to live with being in breach of a UN declaration they should never have adopted

In other words, says the UN, Canada should stop all work on its three largest energy projects worth billions in new investment

Canada’s Prime Minister Justin Trudeau welcomes Members of Parliament to the House of Commons as parliament prepares to resume for the first time since the election in Ottawa, Ontario, Canada December 5, 2019.Patrick Doyle / Reuters

According to an ancient political proverb, governments that pander to the globalist sword fighters at the United Nations run a grave risk of getting their policy necks lopped off. And so, as prophesied, that object now rolling across the Canadian West toward Ottawa is the Trudeau government’s self-righteous 2016 decision to wrap its arms around UNDRIP — the 2007 United Nations United Declaration on the Rights of Indigenous Peoples.

With Canada now signed on to the United Nations’ feel-good indigenous agenda, UN operatives are back and claiming, as is their practice, that Canada is failing to live up to the full meaning of the declaration, which among other things requires Ottawa and the provinces receive full agreement from Indigenous peoples before proceeding with economic development.

Through a subgroup called the Committee on the Elimination of Racial Discrimination (CERD), the UN has drafted a two-page decision calling on Canada to “immediately cease” construction of the Trans Mountain pipeline expansion, to “immediately suspend” construction on the Site C dam in British Columbia and to “immediately halt” all work on the Coastal Gas Link LNG pipeline.

In other words, says the UN, Canada should stop all work on its three largest energy projects worth billions in new investment. According to the “decision”— following typical global bureaucratise — CERD said it is “concerned” about the pipeline plans, “disturbed” by forced removal and harassment of protesters and “alarmed” by what it calls escalating threats of violence against Indigenous people.

Had the Trudeau government refrained from enthusiastically adopting the UN Indigenous rights declaration in 2016, the quick answer to these insistent directives would be to tell the global agency to look to parts of the world where rights are actually being trampled on. China, for example. Or how about Venezuela? Iran, anyone?

The only option is to let the pipelines be built and to hell with the UN.

But having signed on to the declaration, Canada is an easier target, a goose with its self-righteous neck sticking out for easy political removal. When Canada adopted the declaration in May of 2016 — nine years late — the formal announcement by Indigenous Relations Minister Carolyn Bennett was greeted with a standing ovation at the UN. Canada, she said, is “now a full supporter of the declaration, without qualification.”

Well, not quite. There are a couple of clauses in the declaration that most legal scholars and clear-eyed politicians view as all but impossible to adopt within Canada’s constitutional framework.

Even former Trudeau justice minister Jody Wilson-Raybould sounded more than skeptical about the UNDRIP adoption. In a 2016 speech, she said much as she would like to cast Canada’s Indian Act into the fire of history, “simplistic approaches, such as adopting the UNDRIP as being Canadian law, are unworkable.” In another comment, she said “it is important to appreciate how come it cannot be simply incorporated, word for word, into Canadian law.”

But that is exactly what the UN wants Canada to do. In its decision calling for the shutdown and suspension of Trans Mountain and Coastal Gas Link pipelines, CERD insists that Canada constitutionally adopt a UNDRIP legal concept that requires Canadian governments to seek the “free, prior and informed consent” of Indigenous people over large-scale economic development projects that may impair their rights, culture and way of life.

Free, prior and informed consent — known in the business as FPIC — is imbedded in UNDRIP and was for a decade the major reason Canada did not sign the 2007 declaration. Canada was so strongly opposed to the idea that it was the only UN member to refuse the UN’s FPIC principles.

Even after the Trudeau government adopted UNDRIP, it continued to fudge the issue. A recent paper in the International Indigenous Policy Journal says the latest Trudeau government pronouncement on FPIC is weak. The best Ottawa can do is claim that it “recognizes that meaningful engagement with Indigenous peoples aims to secure their free, prior and informed consent.”  A policy that “aims to” do something is not a hard policy.

Canada’s Supreme Court has ruled that governments, including provinces, have a “duty to consult” Indigenous peoples, but legal experts say FPIC takes the concept several steps beyond mere consultation to requiring full “free will” agreement.

The province of British Columbia has also embraced UNDRIP, so it will have to find a way to respond to the UN criticisms of the Site C hydro project.

The Trudeau Liberals are now in a bind of their own making. Ottawa moved to adopt UN principles that are incompatible with Canadian constitutional law, and now the UN is knocking at Canada’s door demanding action.

Alberta has firmly responded: “With all the injustice in the world,” said Minister of Energy Sonya Savage, “it’s beyond rich that the unelected, unaccountable United Nations would seemingly single out Canada — one of the greatest champions of human rights, democracy and the rule of law.”

What will Ottawa do? In his post-election mandate letter to Carolyn Bennett as minister of Indigenous relations, the prime minister instructed her to “support the minister of justice and attorney general of Canada in work to introduce co-developed legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples by the end of 2020.”

If legal scholars and Jody Wilson-Raybould are right, introducing “free and prior consent” into Canadian law is a legal impossibility, which means that the Trudeau Liberals will have to live with being in breach of a UN declaration they should never have adopted.

The only option is to let the pipelines be built and to hell with the UN.

In the wake of Indigenous rights declaration, B.C.’s lawyers make ‘distasteful’ arguments in First Nations title case

The province is arguing the Nuchatlaht, who have never ceded control of their traditional territory in Nootka Sound on Vancouver Island, abandoned their land — while the nation reminds the court their land was stolen.

Nuchatlaht Traditional Territory Nuchatlitz Inner Basin Nootka Island Troy Moth
The Nuchatlitz Inner Basin on Nootka Island in the Nuchatlaht First Nation’s traditional territory. The nation is currently engaged in legal proceedings to claim title to their land. Photo: Troy Moth

On the same day the B.C. government passed legislation embracing the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in late November, lawyer Jack Woodward was in court representing the Nuchatlaht First Nation in a historic land title case.

“I was on my feet the day it came into force, so I could present it to the court,” Woodward told The Narwhal.

“It had its first test before the ink was dry.”

But Woodward — renowned for his role in drafting Section 35 of the Canadian Constitution, which enshrined Indigenous rights in the 1980s — said the newly minted law has meant very little to the Nuchatlaht case and arguments being used by B.C.’s lawyers in courts.

The province claims the Nuchatlaht do not have legal claim to their lands because the nation abandoned its territory, Woodward said.

“The province is completely wrong on the facts … They did not abandon Nootka. The lands were stolen and they were forcibly ejected,” Woodward said.

“I said to the judge that not only are these pleadings disgraceful, objectionable and distasteful, they are now illegal.”

Jack Woodward, lawyer for the Nuchatlaht

Jack Woodward, lawyer for the Nuchatlaht. Photo: Daniel Pierce

New rules reinforce inherent Indigenous right to land

B.C.’s new law acknowledges that UNDRIP’s principles are specifically written with concern that “Indigenous peoples have suffered from historic injustices as a result of … their colonization and dispossession of their lands, territories and resources.”

The declaration also recognizes the “urgent need to respect and promote the inherent rights of Indigenous peoples … especially their rights to their lands, territories and resources.”

Article eight of UNDRIP says governments must use “effective mechanisms” to prevent the dispossession of Indigenous lands and resources.

The Nuchatlaht’s traditional territory lies on the west coast of Vancouver Island, encompassing  a large part of Nootka Island, Nuchatlitz Inlet and part of Esperanza Inlet. While the nation argues it maintained strong ownership over its traditional territory once European settlers arrived, in more recent history the land was parceled out under B.C. laws, giving industry — and in particular, logging companies — access to the land. MORE

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



5 reasons BC needs a law to protect the coast

Third Beach, Tofino (Photo: Michael Gabelmann)
Top photo: Third Beach, Tofino, BC (Photo: Michael Gabelmann via Flickr Creative Commons)

December 3, 2019

Who is minding the coast in BC? You might be surprised to learn there are some big gaps – protecting shoreline habitat, working with Indigenous governments to legally implement marine planning , managing the cumulative effects of tenures for docks, utilities, log handling, shellfish aquaculture, and a range of other commercial uses…it all adds up to vulnerability for BC coastlines and the communities that depend on them.

Another problem area is the effect of climate change on the coasts, which we wrote about recently, following the release of the expert report on the global state of oceans and coasts.

West Coast and CPAWS join forces in new campaign

Despite its extensive responsibilities and the sheer importance of the coast and ocean to all who live here, the provincial government has no coordinated coastal strategy to guide regulation and policy. That is why we have launched a campaign with our partners at the Canadian Parks and Wilderness Society (CPAWS BC) – Protect the Coast.

We’re calling for the creation of a new provincial Coastal Strategy and accompanying BC Coastal Protection Act, to be co-developed with Indigenous governments and coordinated with federal and local governments, as all orders of government share jurisdiction.

A new Act could address many issues, but here are a few important reasons why these innovations matter for BC’s coast.

Five key reasons to establish a BC Coastal Protection Act

1. Implementing the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and upholding Indigenous laws

Often the province develops legislation and policy without proper Indigenous involvement. A solution is to co-develop a BC Coastal Protection Act jointly with First Nations in BC. The new BC Environmental Assessment Act is an example that shows how this process can work.

Provincial coastal and marine management does not currently recognize Indigenous law and/or provide adequate space for Indigenous nations to articulate their coastal governance laws. A new Act can recognize Indigenous legal principles, building on successful experiences such as the Haida Gwaii Reconciliation Act, and marine plans such as the Marine Planning Partnership (MaPP) plans.

2. Integrated governance and co-governance

With both the federal and provincial governments having constitutional responsibility over BC’s coast, First Nations having inherent jurisdiction, and local governments having an active role, there’s a big risk of governments working at cross purposes or blaming each other for failing to address problems. The BC coastal and marine environment needs more effective decision-making at the regional level, to get the different orders of government talking together. A new law can fill that gap.

One positive example is the government-to-government decision-making body established to address aquaculture in the Broughton Archipelago. Composed of the ‘Namgis, Kwikwasut’inuxw/Haxwa’mis and Mamalilikulla First Nations and three provincial Ministries, this body reached agreement to protect and restore wild salmon stocks. Their recommendations included establishing a farm-free migration corridor in the Broughton, allowing an orderly transition plan for the 17 salmon farms in the Broughton area, and plans for creating employment and other opportunities for local communities and workers. Two fish farm operators in the region, Mowi Canada West (formerly Marine Harvest Canada) and Cermaq Canada, also agreed to the plan. The federal Minister of Fisheries commended the work of the body.

At present, the role of most First Nations in coastal management is not formally recognized by the BC government. A Coastal Protection Act could allow co-governance through the establishment of a new provincial Coastal Commission, for example. Alternatively, regional co-governance bodies can be created, following examples such as the Haida Gwaii Management Council and Archipelago Management Board. Both bodies exercise decision-making responsibilities in tandem with the provincial and federal governments, respectively.

There also needs to be a link between more strategic level management and planning, and action on the ground. An Act can set out a process for co-developing coastal and marine objectives that can then be administered by all orders of government within their spheres of authority. A well-known example of this is found in the California Coastal Act and Commission.

3. Preventing further loss of coastal habitat and protecting vital habitats

Foreshore habitat continues to be lost in BC as a result of development (with estimates of 50 – 90% losses of coastal wetlands in major estuaries since records started being kept). A new Act can create provincial regulation or policy to prohibit or prevent coastal habitat loss and better protect the foreshore by coordinating with coastal flood management activities, and supporting nature-based measures to deal with coastal flooding.

Currently BC lags behind other jurisdictions: this past spring Nova Scotia passed a Coastal Protection Act, and down the Pacific coast Washington, Oregon and California all have coastal protection laws.

The State of Washington is currently using regulation and incentives to reduce overall rates of shoreline hardening. A recent report from the Environmental Law Centre at the University of Victoria takes an in-depth look at Washington’s law and how it works to protect forage fish habitat, and how a new Act in BC might replicate this approach.

No comparable regulatory tool or policy exists in BC. And as a result, shoreline habitats, such as the beaches that forage fish and other species rely on, may be lost. A number of local governments have adopted Green ShoresTM policies that need provincial legislative support to be fully implemented.

A provincial Coastal Protection Act can also restrict building on the sensitive foreshore by developing requirements for coastal setbacks. The BC Riparian Areas Regulation does not apply in marine areas, and local governments that try to require setbacks and prohibit building seawalls have been challenged in court as lacking adequate jurisdiction as this court case shows. (The Islands Trust is appealing the decision)

4. Requiring binding and enforceable marine plans, and a new system of marine tenures

The province is at the forefront of best practice in marine spatial plans (MSP). The ecosystem-based Marine Planning Partnership (MaPP) plans developed for the central and north coasts, co-developed with Indigenous governments, are a cause for celebration. Older coastal plans such as this one developed for the Johnston-Bute coastal area also show provincial leadership.

Yet all these plans are voluntary, carry no consequences for non-compliance, and do not address the cumulative effects of tenure approvals. Without legislative backing and oversight, these plans risk being ignored.

The Minister of Agriculture’s Advisory Council on Finfish Aquaculture emphasized that after expending so much time end energy to reach aquaculture siting decisions, there is a need to “Identify and apply appropriate B.C. regulatory tools to reinforce the direction provided on net-pen finfish aquaculture siting and tenure management in existing, approved marine spatial plans developed and approved by B.C and First Nations.”

The solution here is clear: a Coastal Protection Act can make marine plans legally binding and enforceable. Legislation often provides that plans are binding, such as the Mackenzie Valley Natural Resource Management Act, and the Ontario Far North Act.

5. Protecting and restoring the health of the marine environment

Poor marine environmental quality threatens fisheries, wild salmon, shellfish aquaculture, human health and recreation. More frequent beach closures and chronic fecal coliform contamination result from inadequate sewage and septic treatment.

A legal order or regulation in a new BC Act can establish management objectives for marine use designations and zones, just as the BC Land Act enables land use objectives and the BC Water Sustainability Act enables water objectives. The province could work with the federal government, as Fisheries and Oceans Canada may create marine environmental quality guidelines under the federal Oceans Act. To date, no such guidelines have been issued.

Protecting the health of the marine environment also means addressing the impacts of climate change on the coast. In BC, local governments are the primary managers of the current and anticipated impacts of sea level rise. They have responsibility for most coastal dikes as well as development in coastal areas.

The provincial government has provided guidance about the rate of sea level rise. While the Ministry of the Environment and Climate Change Strategy provides overall information about climate impacts, there is no clear framework for implementing mitigation measures.

From a governance and flood risk management perspective, the connection between provincial and local governments is made through the Flood Hazard Area Land Use Management Guidelines, which are developed as policy to support the implementation of the Local Government Act. A coastal protection law can establish a legal pathway for implementing flood management measures that work with nature, and help preserve coastal habitat.

Tell us what you think!

We’d like to hear from you about what coastal problems the government can tackle and how a new law and strategy can help. Please reply in the comments section below and fuel our campaign with examples of gaps in our coastal and marine protection laws that could be filled by a new law.

UN Indigenous rights bill approved unanimously in B.C.

First Nations Leadership Council was concerned newly-introduced legislation had stalled at the committee stage

Grand Chief Stewart Phillip of the Union of B.C. Indian Chiefs, pictured here in 2018, was one of several Indigenous leaders who attended the tabling of the bill last month in the B.C. Legislature. (Nic Amaya/CBC)

B.C. has become the first jurisdiction in Canada to formally implement the United Nations Declaration on the Rights of Indigenous Peoples.

The bill was approved unanimously in the legislature on Tuesday.

“Today, we have made history,” the Ministry of Indigenous Relations and Reconciliation and the First Nations Leadership Council said in a joint statement.

The bill mandates the provincial government to bring its policies and laws into harmony with the aims of the UN Declaration on the Rights of Indigenous Peoples.

Bill 41 was developed by the provincial government together with the First Nations Leadership Council to uphold Indigenous rights and create stronger communities, said the statement.

Any future changes needed to comply with the UN declaration will be done in consultation and collaboration with Indigenous peoples, the joint statement added.

Indigenous leaders across the province had urged the official Opposition to allow passage of the legislation for a new relationship between the province and First Nations.

Before the legislation was approved, the First Nations Leadership Council had expressed concerns about the bill being stalled in committee, noting it had been at that stage since Oct. 30.

“Our province has been limited by the uncertainty of litigation,” B.C. Green MLA Adam Olsen, who is a member of Tsartlip First Nation, said in a news release.

“And now, rather than conflict there is an opportunity of increased collaboration and of economic prosperity that is fairer for everyone,” he added.

The legislation is now enshrined in provincial law. SOURCE