UNCERTAIN DECLARATIONS

Well-meaning legislation between province and First Nations raises some questions

The B.C. legislature chamber was awash in good feelings Thursday as the government introduced legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples.

New Democrats, B.C. Liberals and Greens endorsed it.

First Nations leaders stood on the floor of the house and praised it.

No leader was more glowing than the oft-critical Grand Chief Stewart Phillip of the Union of B.C. Indian Chiefs.

He even referred to John Horgan as “our dear premier.”

The dear premier responded in kind, reminding the house how Phillip had once said “reconciliation is not for wimps.” Horgan paused for effect, then addressed the grand chief directly: “You, sir, are not a wimp.”

No, but he can surely be a thorn in the side.

Horgan was still leader of the Opposition back in 2016 when he endorsed the UN declaration in an address to Phillip’s assembly.

A year later, Horgan as premier incurred Phillip’s wrath by rejecting calls to halt construction on the Site C dam on the Peace River.

“It’s heartbreaking,” declared Phillip, underscoring that two First Nations in the area had never consented to the dam and were fighting it in court.

“Horgan has inflicted irreparable harm on the NDP brand in B.C.,” continued Phillip, himself a longtime NDP supporter. “This will go down in the annals of history as black Monday for the NDP.”

All that was water — or maybe bad blood — over the spillway as Phillip and other First Nations leaders pledged to work with the New Democrats to implement the UNDRIP legislation.

But lingering in the background was the question of consent.

The declaration obliges governments “to consult and co-operate with Indigenous peoples to obtain their free and informed consent prior to the approval of any project affecting their lands and other resources.”

But what happens when consent is withheld as in the case of Site C and other projects in B.C.?

Taking questions from reporters outside the legislature chamber, Horgan began by addressing whether “free, prior and informed consent” means a veto.

“The word veto is not contained in the legislation, nor is it contained in the UN Declaration,” Horgan declared. “And I’m very excited about putting to rest the notion that there’s a veto involved here.”

Laid to rest by the premier himself, the 24th day of October, 2019.

But after several follow-ups, the notion seemed to rise from the grave.

Horgan was asked about the natural gas pipeline for the LNG terminal in Kitimat.

The elected leadership of 20 First Nations along the route endorsed the project. But some hereditary chiefs withheld consent and set up a protest encampment on the route. How could a standoff between elected and hereditary leaders be resolved?

Horgan replied that under the UN declaration, B.C. was not defining “who was to be negotiated with” in a given First Nation.

“How First Nations govern themselves is up to them,” said the premier. “It’s not up to the province to dictate how they govern themselves.”

What happens if the province and a First Nation consult extensively on a big project and still can’t reach consensus?

“Well, I think those are bridges that we should cross when we get to them,” said Horgan, unwilling to entertain the possibility.

What if many First Nations, or branches of one First Nation, consent but some do not. Could that derail a project? The premier professed to appreciate the line of questioning.

“You want me to say definitively that from this day forward life will be better than it was yesterday.

… I appreciate that’s your job to report on the past and what might be the future.”

But on this harmonious day, he thought reporters should be more positive.

“When you’re doing your stories, I believe you should start based on the unanimity we have here today, rather than distinguishing one group against another.”

Well, I’m positive that the premier means well and positive that the province and First Nations will try to make it work.

But Horgan also touted the legislation as a way of achieving certainty on the land base and in relations with First Nations. And I don’t see anything certain about the exercise.

The bill obliges the province to work with Indigenous peoples to ensure B.C. laws are consistent with the UN declaration.

There’s to be a plan and annual progress reports.

But there’s no written-into-law deadlines for any of this and the task looks to be onerous in the extreme.

The bill says that in the course of reconciling hundreds of B.C. laws with the UN declaration, “the government must consider the diversity of the Indigenous peoples in B.C., particularly the distinct languages, cultures, customs, practices, rights, legal traditions, institutions, governance structures, relationships to territories and knowledge systems of the Indigenous peoples in B.C.”

All that for each of roughly 200 recognized First Nations in B.C. — there being more of them than there are members of the UN, which crafted this declaration.

Horgan was asked about the absence of a timetable.

“I wouldn’t want to say it’s going to be 20 years, I don’t want to say it’s going to be 20 months because it’s up to the people that are going to be working together on this,” he replied.

If that’s what passes for certainty in the realm of UNDRIP legislation, I can’t imagine what would be the premier’s timetable if he didn’t have a clue.