Category: Constitution


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 Today, UNDRIP is obsolete, unnecessary and potentially harmful to all Canadians, including Indigenous peoples.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.]