Parliament is currently considering Bill C-15, relating to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which states that economic development on lands claimed by Indigenous peoples requires their “free, prior, and informed consent” (FPIC)..Bill C-15 does not directly legislate UNDRIP or FPIC. However, it states that UNDRIP has “application in Canadian law”; that C-15 provides “for the Government of Canada’s Implementation of the Declaration”; and that the government must “take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.” Anyone reading C-15 will conclude that the plan is to legislate UNDRIP and FPIC in Canada sooner or later. .Canada, however, already has an elaborate body of jurisprudence regarding consultation. Starting with the Supreme Court of Canada’s 2004 decisions in the Haida Nation and Taku River cases, the courts have propounded the doctrine of government’s “duty to consult and accommodate” indigenous peoples before authorizing resource development on their lands. The development of this body of law has sometimes seemed chaotic, as when the Federal Court of Appeal ruled that consultation had been inadequate in the case of the Mackenzie Valley pipeline, the Northern Gateway pipeline, and the Trans Mountain expansion. However, with that court’s holding in the second Trans Mountain case that the right to be consulted is not a veto power, the law seems to have reached a certain state of maturity. That equilibrium would be upset by layering FPIC over it, for FPIC is nothing if not a veto..Another problem is that the concept of “traditional territory,” over which the duty to consult applies, has never had an authoritative definition in Canadian law. Many First Nations have overlapping and conflicting claims to traditional territory. Legislating a veto right would create many difficult issues of knowing who could exercise that right, and within which boundaries..The difficulties become extreme when one considers linear projects such as pipelines, highways, railways, and hydro lines. Projects of this type, especially when they are interprovincial or international, may cross the traditional territories of dozens of First Nations. Under the FPIC doctrine, would each entity be able to exercise a right of veto over construction? Such a right would create costly holdout problems, as organizations jockey to obtain better terms from the proponent..In the larger Canadian society, dilemmas of this type are resolved by expropriation with fair compensation, as determined by a regulatory commission or court. The equivalent in aboriginal law is the doctrine of justified infringement of aboriginal rights and title, which the courts have propounded on numerous occasions. Legislating FPIC would threaten to overturn the doctrine of infringement, with incalculable consequences for necessary infrastructure..These are not merely speculative concerns. The real-world consequences of legislating FPIC were put on display in early 2020 in the dispute over the Coast GasLink pipeline. This project was supported by the elected governments of all 20 First Nations affected by it, but it was opposed by one faction of the Wet’suwet’en Nation led by some of their hereditary chiefs. Opponents of Coastal GasLink were encouraged by the passage in British Columbia of Bill 41, whose wording is similar to that of C-15. Within a few months of passage of Bill 41, opposition to Coastal GasLink had spiralled into nation-wide blockades of highways and railroads, especially the CN mainline. This dramatically illustrated the potential of legislation involving UNDRIP and FPIC to produce chaos in the field of resource development..Effects are not limited to the obstruction of oil and gas pipelines. If Canada is to move toward the current government’s announced goal of net-zero carbon emissions by 2050, vast new construction of hydro dams, wind farms, and solar farms will be required to replace oil, gas, and coal with electricity. Many of these installations will be in remote areas, and they will require new hydro lines to tie into the electrical grid. They will also require new service roads for construction and maintenance. All of these projects will be just as susceptible to obstruction as oil and gas pipelines are. Under any conceivable scenario, the last thing that Canada should do now is to pass legislation that will make the construction of necessary linear infrastructure more difficult. If Parliament chooses to go ahead with C-15, it would be wise to include an amendment specifying that FPIC will not supersede Canada’s evolved jurisprudence on consultation..Guest Column:Tom Flanagan is professor emeritus of political science at the University of Calgary. This column is drawn from his submission to the House of Commons committee now considering Bill C-15.
Parliament is currently considering Bill C-15, relating to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which states that economic development on lands claimed by Indigenous peoples requires their “free, prior, and informed consent” (FPIC)..Bill C-15 does not directly legislate UNDRIP or FPIC. However, it states that UNDRIP has “application in Canadian law”; that C-15 provides “for the Government of Canada’s Implementation of the Declaration”; and that the government must “take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.” Anyone reading C-15 will conclude that the plan is to legislate UNDRIP and FPIC in Canada sooner or later. .Canada, however, already has an elaborate body of jurisprudence regarding consultation. Starting with the Supreme Court of Canada’s 2004 decisions in the Haida Nation and Taku River cases, the courts have propounded the doctrine of government’s “duty to consult and accommodate” indigenous peoples before authorizing resource development on their lands. The development of this body of law has sometimes seemed chaotic, as when the Federal Court of Appeal ruled that consultation had been inadequate in the case of the Mackenzie Valley pipeline, the Northern Gateway pipeline, and the Trans Mountain expansion. However, with that court’s holding in the second Trans Mountain case that the right to be consulted is not a veto power, the law seems to have reached a certain state of maturity. That equilibrium would be upset by layering FPIC over it, for FPIC is nothing if not a veto..Another problem is that the concept of “traditional territory,” over which the duty to consult applies, has never had an authoritative definition in Canadian law. Many First Nations have overlapping and conflicting claims to traditional territory. Legislating a veto right would create many difficult issues of knowing who could exercise that right, and within which boundaries..The difficulties become extreme when one considers linear projects such as pipelines, highways, railways, and hydro lines. Projects of this type, especially when they are interprovincial or international, may cross the traditional territories of dozens of First Nations. Under the FPIC doctrine, would each entity be able to exercise a right of veto over construction? Such a right would create costly holdout problems, as organizations jockey to obtain better terms from the proponent..In the larger Canadian society, dilemmas of this type are resolved by expropriation with fair compensation, as determined by a regulatory commission or court. The equivalent in aboriginal law is the doctrine of justified infringement of aboriginal rights and title, which the courts have propounded on numerous occasions. Legislating FPIC would threaten to overturn the doctrine of infringement, with incalculable consequences for necessary infrastructure..These are not merely speculative concerns. The real-world consequences of legislating FPIC were put on display in early 2020 in the dispute over the Coast GasLink pipeline. This project was supported by the elected governments of all 20 First Nations affected by it, but it was opposed by one faction of the Wet’suwet’en Nation led by some of their hereditary chiefs. Opponents of Coastal GasLink were encouraged by the passage in British Columbia of Bill 41, whose wording is similar to that of C-15. Within a few months of passage of Bill 41, opposition to Coastal GasLink had spiralled into nation-wide blockades of highways and railroads, especially the CN mainline. This dramatically illustrated the potential of legislation involving UNDRIP and FPIC to produce chaos in the field of resource development..Effects are not limited to the obstruction of oil and gas pipelines. If Canada is to move toward the current government’s announced goal of net-zero carbon emissions by 2050, vast new construction of hydro dams, wind farms, and solar farms will be required to replace oil, gas, and coal with electricity. Many of these installations will be in remote areas, and they will require new hydro lines to tie into the electrical grid. They will also require new service roads for construction and maintenance. All of these projects will be just as susceptible to obstruction as oil and gas pipelines are. Under any conceivable scenario, the last thing that Canada should do now is to pass legislation that will make the construction of necessary linear infrastructure more difficult. If Parliament chooses to go ahead with C-15, it would be wise to include an amendment specifying that FPIC will not supersede Canada’s evolved jurisprudence on consultation..Guest Column:Tom Flanagan is professor emeritus of political science at the University of Calgary. This column is drawn from his submission to the House of Commons committee now considering Bill C-15.
