National Post (National Edition)
UNDRIP to slow, not hasten Indigenous development
Late last year, the fede ral government introduced legislation — Bill C-15 — to ensure that the laws of Canada are consistent with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). While the affirmation of Indigenous rights is always welcome, the legislation as currently drafted is likely to have negative impacts on the many Indigenous communities that rely on resource development as a source of jobs, business contracts and own-source revenues. Symbolic gestures of reconciliation should not come at the expense of food on the table for Indigenous peoples.
I am not a lawyer, but I have spent my professional life in First Nations administration and the oil and gas industry and know first-hand what happens when federal bureaucracy gets in the way of responsible resource development. However well-intentioned C-15 is, my discussions with legal experts, industry representatives and investment bankers persuade me it is introducing another layer of uncertainty and risk to development in Indigenous territories. That is because it adds to the confusion about who has the authority to provide or deny consent on behalf of Indigenous peoples, be it chief and council, hereditary chiefs, or small groups of activists. It also implies that a single nation can deny consent — a veto in practice if not in name — on projects that cross dozens of territories, be they pipelines, railroads or electric transmission lines.
I have heard numerous politicians, Indigenous leaders and academics promise that this legislation will actually bring certainty to resource development. That seems to be an opinion from people who don't work in the private sector and don't need to go out and attract investment to keep their jobs or take care of their families. The most optimistic assessments I have heard from Indigenous businesspeople is that UNDRIP legislation won't affect them one way or another: it is a symbolic gesture from Ottawa with no impacts in practice. Many others are afraid it will discourage resource development in our territories.
So why should Indigenous peoples care if the resource industry can proceed with projects or not?
I suppose if you conceive of Indigenous people as victims of resource development who need the federal government and the courts to protect them, then C-15 adds one more barrier between industry and Indigenous peoples and that is seen as a good thing.
But if you conceive of First Nations as self-determining nations who require a functioning economy in order to exercise their sovereignty, and of Indigenous peoples as entrepreneurs, workers and business men and women, then you would understand that we intend to be the project proponents in the future: owners and equity stakeholders that need to go out and attract our own investment and be competitive. From this perspective, the uncertainty added by C-15 is detrimental. For more than a century, we have been handicapped by the Indian Act and by the extra layers of federal bureaucracy that complicate and impede all land development on reserves, and our people are poorer for that. We need our leaders and politicians to work on removing barriers to Indigenous economic development, not adding to them.
It is worth remembering that UNDRIP does not just provide Indigenous peoples with the right to say no to development; it also supports our right to say yes. Article 32 states that “Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.”
The choice in front of us isn't between either recognizing the principles of UNDRIP, or not. It is about being much more careful about how C-15 is drafted, so that it doesn't impose unintended costs that Indigenous peoples will once again bear the brunt of. And that requires far more consultation with chiefs and Indigenous peoples than has been done to date.
COVID-19 is restricting the ability of chiefs to travel to Ottawa to speak directly with representatives of Parliament and share our thoughts and concerns regarding the bill. Our leaders are busy dealing with public health issues. We need the time to understand, before legislation is passed, how it will affect Indigenous peoples in practice, what it will mean to the process of consultation and consent for projects on our territories, and how the proposed action plan will be developed.
The simple fact is that most of our communities need resource development in order to prosper and achieve economic self-determination. We don't need legislation that will make that harder.
IMPLIES THAT A SINGLE NATION CAN DENY CONSENT — A VETO IN PRACTICE IF NOT IN NAME.