SOUNDS A LOT LIKE A VETO

The New Democrats will be trying to explain Thursday why guaranteeing free, prior and informed consent to First Nations is not the same as granting them a veto.

The challenge arises because shortly after 10 a.m., the government will table legislation to begin implementing the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP.

The most contentious of the 46 articles in the UN declaration for B.C. reads in part: “States shall consult and cooperate in good faith with Indigenous peoples in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources.”

Premier John Horgan has been struggling to explain why that is not the same as a veto since he endorsed UNDRIP without reservation three years ago.

But the challenge facing him was well illustrated by the debate earlier this year over a related piece of legislation at the federal level.

The B.C. New Democrats have said their UNDRIP legislation is partly patterned after Bill C-262, a private member’s bill drafted by now-retired NDP MP Romeo Saganash.

The legislation was endorsed by the federal Liberal government and it was passed by the House of Commons in the spring of 2018.

But it got bogged down in the Senate — where it died on the order paper when the election was called — partly because of concerns over the meaning of free, prior and informed consent.

Federal ministers, despite their government’s endorsement of the bill, politely declined invitations to appear before a Senate committee to explain or defend the contents.

Federal officials did appear but did not offer all that much in the way of clarification. Here’s Ross Pattee, an assistant deputy minister in the federal Ministry of Indigenous Relations: “Free, prior and informed consent is not defined in the UN declaration, and there is no international or domestic agreement on the meaning of the principle of free, prior and informed consent.”

So Canada endorsed the declaration without the UN having defined it.

“The meaning of the first three elements is generally understood as being focused on the procedural components of consultation and participation of Indigenous people,” Pattee continued.

“Free generally implies there is no coercion, intimidation or manipulation. Prior implies that the consent is to be sought sufficiently in advance and that respect is shown to time requirements of Indigenous consultation processes. Finally, informed implies that the information provided covers a range of aspects related to the matter at issue.”

As for consent, a former UN official characterized it as “making every effort toward mutually acceptable arrangements, allowing Indigenous peoples to generally influence the decision-making processes. It’s about building consensus and working together in good faith.”

But what if all those wellintentioned efforts fail to produce consensus? Does a First Nation then have a veto?

The federal official didn’t go there. But one of the bill’s supporters, Manitoba Sen. Murray Sinclair, the former chair of the truth and reconciliation commission, took a stab at it.

“There is a lot of consternation out there about the issue of free, prior and informed consent and the allegation that it amounts to a veto,” he acknowledged to the other members of the Senate committee.

“It’s important to understand the difference between a veto and a withdrawal or refusal to consent. The fact that you ask permission for someone to do something, and they say no, doesn’t mean you are stopped from doing it,” he continued.

“What they are saying is you can’t do it on my land, or you can’t do it with me. You have to go do it with somebody else or you have to go do it on somebody else’s land.”

But that, he insisted, is not the same thing as a veto.

“A veto is somebody who has the right to stop you from doing it at all. You could narrowly interpret the concept of veto to say we’re vetoing your right to use this land that we’re on, that you’re on, and say, well that’s a veto because you’re vetoing my desire to use your land.”

He paused to note how in Latin, veto means I forbid.

“Indigenous people are not being given the right to forbid. They are being given the right to require their consent. That’s totally different.”

The rest, as he saw it, was all politics.

“I understand that people are eager to look for simple concepts, but people who use the concept of veto and the concept of free, prior and informed consent as though they are the same thing are totally missing the point. They are totally different things.”

With all due respect to the senator, I don’t see much difference.

You can’t do it on my land. You have to go do it on somebody else’s land?

That sounds like a de facto veto, especially in the case of a big infrastructure project like a pipeline, which overlaps the traditional territories of many First Nations.

If that’s the best the defenders of UNDRIP legislation can come up with, it would probably be better to just admit it’s a veto.

But today’s legislation is no private member’s bill. Rather, it is the product of a government-led drafting team, working in confidence with First Nations, to translate a key NDP election promise into legislation.

On that basis, I would expect something more substantive and readily explained. But we’ll see.

What they are saying is you can’t do it on my land, or you can’t do it with me. You have to go do it with somebody else …