UN stance on energy projects lacks nuance

Awaiting consent of all First Nations is unworkable,

The UN Committee on the Elimination of Racial Discrimination recently called for a suspension of three Canadian infrastructure projects: BC Hydro’s Site C Project, TC Energy’s Coastal Gaslink Project and Trans Mountain’s TMX Project.

The committee believes that since not all First Nations have given their “free, prior and informed consent,” the projects shouldn’t proceed. A short time later, the B.C. human rights commissioner echoed the committee’s position.

The response was immediate, particularly on Coastal Gaslink where a subset of Wet’suwet’en Nation hereditary chiefs is preventing construction in defiance of a court order. Numerous Indigenous leaders have castigated the committee and commissioner for ignoring overwhelming Indigenous support for the project, and truly nation-changing opportunities for some First Nations.

There are also other reasons to be troubled by the committee and commissioner’s positions. The calls for the free, prior, and informed consent of all First Nations appear to be based on the UN Declaration on the Rights of Indigenous Peoples. UNDRIP is a non-binding declaration setting out aspirational standards for the human rights of Indigenous peoples. The declaration refers to free, prior, and informed consent on six different occasions, addressing different actions that might affect Indigenous peoples. Given its nature, the language in the declaration is broad and indiscriminate. As a result, it doesn’t easily lend itself to the nuances of individual situations. However, the UN has confirmed that consent is not expected nor required in all circumstances. Importantly, the declaration also expressly recognizes the need for limits on the rights in the declaration to respect the rights of others. Unfortunately, these balances aren’t accounted for in either the committee or commissioner’s blunt applications.

Ironically, the committee and commissioner’s calls closely follow the passage of legislation in B.C. to implement UNDRIP, and the federal government reaffirming its intention to do so, events the commissioner uses to try to buttress her argument. However, as the B.C. government has made clear, its legislation — which was co-developed with First Nations’ leadership — does not make UNDRIP law. Rather, it requires the government to take measures, in consultation and co-operation with the Indigenous peoples of B.C., to align the laws of B.C. with the declaration’s objectives, as determined through mutual agreement.

Finally, both the committee and the commissioner ignore existing Canadian laws. Canada has a dark legacy of using its laws against Indigenous peoples, but it is also one of only a small number of countries where Indigenous rights are enshrined in its Constitution.

Indigenous groups can go to court in Canada to establish their rights, including to attempt to establish that their traditional laws prevail over all others. Perhaps more significantly, even when an Indigenous group hasn’t proven its rights, it can still go to court to argue its rights weren’t properly respected during a government decision-making process, including arguing their consent is needed before a project can proceed. Unfortunately, the hereditary chiefs who oppose Coastal Gaslink didn’t pursue either of these opportunities, which also seems to have been ignored by both the committee and commissioner.

The committee and commissioner conclude by expressing hope for a peaceful resolution and concerns about threats of violence; albeit pointing their collective fingers in only one direction. Hopefully, we can at least agree that we all want a peaceful resolution.

Hopefully, we can also agree that we share a goal of finally ending discrimination against Indigenous people. But, with respect, that path isn’t going to be achieved by advocating that nothing should happen unless all Indigenous people consent to it; history has taught us that’s almost certain to be a recipe for nothing to happen.

Ending discrimination also isn’t going to be achieved by encouraging Indigenous people to engage in self-help remedies rather than, if necessary, resolving our differences in court; respecting the law can’t only be for the alleged oppressors.

Finally, ending discrimination isn’t going to be achieved by fanning the flames on people’s fears about the declaration. If B.C.’S legislation is going to succeed, it will be because it’s based on mutual recognition and respect, and showing that Indigenous and non-indigenous people can work together, not encouraging the lawless pursuit of unilateral action and uncertainty.

Sandy Carpenter is co-founder of Canadian Regulatory and Indigenous Law and widely recognized as one of the leading experts in regulatory and Indigenous law in Canada.