Introduction to This Three-Part Post

The Canadian economy has been devastated by the Covid-19 pandemic, and still faces further losses.  As we emerge from the lockdowns and try to restore a new normal, Canada must remember that natural resources – minerals, oil and gas – have always been an important part of the Canadian economy, and particularly, of our exports.  Before the pandemic Canadians faced a major national crisis with railway blockades preventing essential rail traffic from crossing the country.  These blockades were created by a small group of Indigenous Canadians and their non-indigenous supporters in protest against a pipeline, contrary to the wishes of a much larger group of Indigenous Canadians who would benefit from the pipeline and wanted it built.  The pandemic has been a temporary distraction, but the issues remain. Now is a good time to reconsider them.

Complicating the resolution of these issues are pressures for the federal government to enshrine UNDRIP into Canadian federal law, and the claim by the British Columbia government that it has already done so.  This series of three blog posts deals with these issues.

Bottom line: There is nothing wrong, and everything right with using laws and government resources to improve the lives of Canada’s Indigenous peoples. But UNDRIP is a distraction, not a benefit. There are better ways to protect Indigenous peoples than “enshrining” UNDRIP into Canadian law. Today, UNDRIP is obsolete, unnecessary and potentially harmful to all Canadians, including Indigenous peoples.

Almost everything you have read or will read about UNDRIP in Canadian news media and social media is probably wrong.  It’s as if no one has actually read UNDRIP but everyone offers their uninformed opinion on what they think it says.

In these three post I will make three points:

I. Contrary to popular misconception, UNDRIP does not give Canadian indigenous peoples a veto over government approval of pipeline or other resource projects;

II. The BC government’s claim to be the first province to have enshrined UNDRIP into BC law is premature, as it has not done that; and

III. UNDRIP should not be enshrined into Canadian federal or provincial law because that would do more harm than good to First Nations (FNs) and to Canadians generally.    

My conclusion is set out at the end of Part 3.

PART 1: UNDRIP Does Not Give Indigenous Peoples a Veto Over Pipeline Projects

What UNDRIP actually says has become less important politically than what people mistakenly believe it says.  UNDRIP has been weaponized by misquotation to give the false view that UNDRIP requires the  “free, prior and informed consent” of Indigenous peoples before giving the green light to resource projects.  Nowhere does UNDRIP say that. 

The Supreme Court of Canada has ruled in several decisions that there is nothing in the Canadian constitution that would give any FN a veto right over a pipeline approval decision by the government of Canada. The right of FNs to be consulted properly and fully, and to be accommodated reasonably, is constitutionally protected, but that is the limit of the right. For any of Canada’s 600+ FNs to assert that UNDRIP gives it the right to veto the elected government of Canada on a pipeline approval is wishful thinking. For the media to present such assertions as true is lazy journalism.

As but one example of incorrect journalism about UNDRIP, consider the January 15, 2020 Globe & Mail editorial [ here], which is wrong on some key points. My comments on some quotations from the editorial are bolded, in brackets:

“B.C. last year became the first province to enshrine UNDRIP into law. [No, BC has not done that yet, as I explain in Part II.]  At the federal level, the Trudeau government plans to do the same. That is even though it remains unclear exactly what UNDRIP means, and how it may change Canadian law. The Declaration pledges governments to secure the “free, prior and informed consent” of Indigenous people in a number of situations [correct], including before giving the green light to resource projects. ……. [Incorrect.  Contrary to popular misconception, UNDRIP does not require governments to secure such consent before approving resource projects.]

“Others have a different view. The Indigenous Bar Association on Sunday said the Supreme Court of B.C. failed when it granted the injunction. The group found it “difficult to comprehend” how the court made such a decision, given B.C.’s adoption of UNDRIP. [It is not difficult to comprehend how a court can grant an injunction to prohibit continued illegal blockading of a lawful, federal government licensed pipeline project.  That is the court’s duty .  What is difficult to comprehend is how lawyers who have actually read UNDRIP and the BC law would find this difficult to comprehend.]

“This highlights the key unanswered question. If Coastal GasLink were proposed today, and garnered unanimous backing among elected Indigenous band councils but opposition from part of one community in one region, how would the divide be decided in court, through the lens of UNDRIP? [Regardless of how the court would answer this question, it would not use UNDRIP because UNDRIP does not provide the answer.]

“All of which should give pause to Canadians, and to the Trudeau government. Canada already has a rigorous and well-developed Indigenous legal framework.  Rewriting it is not desirable.” [I agree.]

Nothing in UNDRIP Gives Indigenous Peoples A Veto Over Pipelines

Let us look closely at the widespread misconception that UNDRIP provides indigenous peoples with a veto over resource projects.  It is quite common to quote a small part of one UNDRIP Article, which contains the words: “… the free, prior and informed consent of the indigenous peoples concerned…”. This short quote has been interpreted as meaning that because Canada has approved UNDRIP, it has given First Nations the legal right to refuse to consent to a project of concern to them, thereby vetoing it. However, these words, when quoted out of context, do not support that interpretation.

The word “consent” appears in the declaration in six places, sometimes as a requirement, sometimes as a goal but not a requirement.  Let’s look at all six to see if we can find that mythical veto.

1.            Article 10 says that indigenous peoples shall not be forcibly removed from their lands or territories without the free, prior and informed consent of the indigenous peoples concerned. 

That doesn’t apply to an illegal blockade.  It means forcibly evicting an entire FN, or a substantial portion of it, from where they live.  A pipeline doesn’t require anyone to be evicted from anywhere.

2.            Similarly, Article 11 requires consent if cultural, intellectual, religious and spiritual property is to be taken.

Unless the pipeline company will be forcibly taking any cultural, intellectual, religious or spiritual property, this article is irrelevant to the pipeline situation.

3.            Article 19 is the most controversial.  It reads:

“19.        States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.” [Note that there are 40 Words]

That language creates a duty to consult and cooperate in good faith with indigenous people concerned,  in order to obtain their consent before adopting and implementing legislative or administrative measures that may affect them. It would be rewriting this Article improperly to replace the words “in order to” with “to”. The only duty is to consult and cooperate. There is no duty to obtain consent. Consent is a desirable result of consulting and cooperating, but not a duty,

Those who misquote and misrepresent Article 19 are changing the duty, as if it was worded as follows:

States shall obtain the free, prior and informed consent of the indigenous peoples concerned through their own representative institutions before adopting and implementing legislative or administrative measures that may affect them. [31 words]

It would make no sense for Article 19 even to mention the duty to consult and cooperate if obtaining consent was the real duty. The duty to consult and cooperate would be redundant. All Article 19 would need to say is that there is a duty to obtain consent.  But Article 19 doesn’t say that. It is wrong to pretend that it does.

The correct interpretation of Article 19 as requiring no more than consultation and cooperation is reinforced by its use of the expression “may affect”. Why would a government need someone’s consent to something that may – or may not – affect them?

Reading Article 19 as it is actually written, therefore, it is clear that it requires nothing more than good-faith consultation/cooperation so that the indigenous peoples’ concerns and interests are taken into account, with the goal of obtaining their agreement through consultation, if possible. This article does not, as written, require consent as a condition of pipeline construction and operation.  Therefore, read properly, this Article adds nothing to the numerous Supreme Court of Canada and lower court decisions confirming a duty of consultation while repeatedly denying a right of veto.

4.            Article 28 expresses indigenous peoples’ right to redress, through restitution or compensation, for lands, territories and resources which they have traditionally owned or occupied which have been confiscated, taken, occupied, used or damaged without their consent. Unless a pipeline is taking, using or damaging any lands, territories or resources without compensation, Article 28 has no application. In any event, the National Energy Board Act and it successor, the Canadian Energy Regulator Act contains detailed compensation provisions requiring pipelines and other resource projects to compensate anyone whose property is harmed.  Article 28 adds nothing new.

5.            Article 29, paragraph 2, requires governments to take effective measures to ensure that no storage or disposal of hazardous materials shall take place on their lands or in their territories without their consent. Unless a pipeline proposes to use indigenous land or territories as a storage or disposal site for hazardous materials, Article 29 also has no application.

6.            Article 32, paragraph 2, also creates a “consult and cooperate in good faith” requirement, as in Article 19. This is for the purpose of obtaining consent if possible, prior to approving any project affecting the indigenous peoples’ lands or territories.  Article 32 mentions that this duty applies particularly for the development, utilization or exploitation of mineral, water or other resources. A pipeline passing through, e.g.,  the Wet’suwet’en territory  — essentially a 3-4 foot wide buried transportation corridor for gas collected elsewhere — does not develop, utilize or exploit any mineral, water or other resources in their territory.

The Limits of Non-Indigenous Land Ownership

Ownership of real estate under Canadian law is no longer the way it was in frontier days in the Wild West.  Your rights as an owner are limited by government powers of taxation, expropriation and police power. Another important limitation is an easement by a public utility (water, sewers, electricity, natural gas, cable TV, ) that permits it to use your land or the ground under it for its purposes.

Even if you own land in a municipality, when you purchased it there were already utility easements.  Why?  Because utilities exist for the benefit of the entire community. 

A few years ago Enbridge (my natural gas utility) dug up and (somewhat) re-patched the front part of my driveway to replace a natural gas pipe to a house across the street.  This was of no benefit to me.  If I had refused to let them do this they would have returned a few days later with a court order, a police officer to enforce it, and a bill to me for $20,000+ for the cost of obtaining the court order.  Knowing that this would happen I told Enbridge to go ahead. 

Canadian natural gas companies have over 550,000 kilometres of transmission and distribution pipelines, serving 6,534,000 residential customers. Most of these gas customers will probably have two or more persons living there. And then there are industrial and commercial customers.

Canada’s network of underground gas pipelines covers most major urban areas.  Non-indigenous Canadians cannot legally prevent the construction of gas pipelines on/under their land.  UNDRIP, properly read, does not give indigenous Canadians more property rights than non-indigenous Canadians.

 ‘Aboriginal Title’ is Not the Same Land Ownership

Aboriginal title under the SCC’s Delgamuukw decision is a unique form of property that is not as strong as ordinary “fee simple” land title. The  SCC held:

“Constitutionally recognized aboriginal rights are not absolute and may be infringed by the federal and provincial governments if the infringement (1) furthers a compelling and substantial legislative objective and (2) is consistent with the special fiduciary relationship between the Crown and the aboriginal peoples.  The development of agriculture, forestry, mining and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, and the building of infrastructure and the settlement of foreign populations to support those aims, are objectives consistent with this purpose. “

This brings us to the two key questions: (1) is the installation and burial of a 36 inch gas pipeline a compelling and substantial legislative objective for general economic development and the building of infrastructure? (2) does this buried pipeline (about the same diameter as my waistline) infringe aboriginal title, requiring fair compensation?

Looking at the SCC’s examples of appropriate forms of development, a gas pipeline that will provide substantial economic benefits to Canada would answer “yes” to the first question.

 On the second question, it is highly doubtful that this thin underground pipe, in 22,000 square km of Wet’suwet’en claimed territory, is an infringement of aboriginal title, any more than the same underground pipe is in most of urban Canada.  However, in any event, the pipeline company has signed agreements with the FNs along the route to give them substantial economic compensation as well as employment and job training benefits.

A new pipeline’s authority to do what would otherwise be a trespass comes from the government’s licensing.  The rationale for that licensing is similar to the utility delivering natural gas or electricity or water to all Canadian households and businesses. The rationale is that the public benefits from permitting the underground gas pipe far outweighs the relatively minor inconvenience to the property owner.  Only in rare situations (e.g. where an above ground pumping station or other facility must be built on private property) will there have to be compensation paid to the land owner.

Weighing the public benefit against the individual inconvenience must be made by elected representatives with public accountability. It cannot be made by self-appointed blockaders with no accountability for the public benefits their blockades seek to prevent.

To the best of my knowledge, the hereditary Wet’suwet’en chiefs have never explained why they chose to blockade the pipeline.  What harm would the pipeline cause to the people they claim to represent that would justify tearing up a court injunction in front of the TV cameras and demanding removal of the RCMP seeking to enforce it?  I don’t know, and no one in the mainstream media seems to have asked.

Government Inaction Rewards Misuse of UNDRIP

The SCC has held that FNs do not have a veto over developments like pipelines.  As shown above, UNDRIP gives no veto either.

However, UNDRIP has been misrepresented as providing a legal justification for creating an effective veto over pipelines, first, through repeated, harassing litigation against the TransMountain pipeline expansion, and when that tactic didn’t work any more, illegal blockades.

Although there are enforceable court injunctions against the Wet’suwet’en blockade, the rule of law matters little in the world of politics unless it is enforced. It was not enforced.  Indeed, no federal cabinet minister even criticized the blockades publicly.  Instead, the Prime Minister spoke of the need for dialogue with the blockaders, followed by a confidential deal under which the blockaders were rewarded rather than prosecuted.

What about the government’s duty to protect the aboriginal rights and title of all those First Nation communities along the pipeline route, including  the majority of the Wet’suwet’en and their elected chiefs, who were extensively consulted over several years, and who voted to see it built? They have negotiated and signed financially beneficial agreements with the pipeline company through a democratic process.  Apparently their rights count for nothing against blockades.

If the blockaders get what they want because the government won’t enforce injunctions that rewards them, and encourages more blockades in future. Whether UNDRIP authorizes such blockades or UNDRIP is just misquoted to give the illusion of legal legitimacy no longer matters. The Wet’suwet’en hereditary chiefs’ slogan “get off my land”, meaning that the RCMP and the pipeline company were mere trespassers, was, after government inaction, widely accepted in the media as if it was legally justified by UNDRIP.  It was not. It was naked force, without any legal justification, in defiance of court orders.

Here is the widely quoted language of the late Chief Justice Lamer in paragraph 186 of Delgamuukw v.  British Columbia in 1997:

 “Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve ….. “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”.  Let us face it, we are all here to stay.”

This call for reconciliation has since become a major Canadian policy objective.  Reconciliation will not be advanced by a minority of blockaders overturning the democratic choice of the majority of the Wet’suwet’en, with the government’s passive permission.

Read Part 2 here