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Leaping into the unknown
British Columbia adopts UN Declaration on Rights of Indigenous Peoples; NWT next Gary Park for Petroleum News
The British Columbia government has taken a leap into the unknown by reconciling provincial laws with the United Nations Declaration on the Rights of Indigenous Peoples, UNDRIP, though Premier John Horgan insists that prior consent on issues such as natural resource consent is not the same as a veto.
He has been challenged on that view by former Saskatchewan Premier Brad Wall who said UNDRIP is a “de facto veto of natural resource projects, potential pipelines and others,” reinforcing the success of some First Nations in stalling or scuttling pipeline plans and the exploitation of lands such as the Alberta oil sands region.
Assembly of First Nations leader Perry Bellegarde, agreed that UNDRIP recognizes “the right to say yes and the right to say no.”
Horgan has been described as “two-faced” on the issue of UNDRIP’s impact on resource projects, having insisted it is not sufficient that support for the Trans Mountain expansion has come from a majority of First Nations along the pipeline route.
“I just reject the notion that this is a majority rule situation,” he said, implying that every Aboriginal rights and titleholder along the right of way already has veto power.
British Columbia first In adopting UNDRIP, British Columbia has become the first of 10 provincial and three territorial jurisdictions in Canada to implement the U.N. declaration that was enshrined 12 years ago.
However, the same language used in British Columbia legislation has been included in a list of priorities for the newly elected government in the Northwest Territories.
UNDRIP consists of 46 articles ratified by the U.N. recognizing the basic human rights of Indigenous people along with their rights to self determination.
That includes creating education systems, receiving restitution for stolen lands and participating in all decision-making that affects their interests.
Canada voted against UNDRIP when it was first introduced in 2007, but later endorsed it in 2010.
National implementation stalled In 2016 an implementation bill was passed by the House of Commons, giving UNDRIP the status of a “universal international human rights instrument with application in Canadian law,” which one legal scholar said could have “unpredictable” implications for constitutional law.
But the bill got stalled in the Canadian Senate, failing to pass before the federal election on Oct. 21.
The British Columbia legislation mandates “action plans” for all government departments and annual reporting on their progress toward fulfilling the rights specified in UNDRIP.
More significantly, the bill gives government departments the authority to share decision making with Indigenous governments.
Although UNDRIP is designed as a declaration of rights, the British Columbia legislation doesn’t open the way for Indigenous groups to sue the government for failing to honor those rights.
As a result, some observers believe the implementation of UNDRIP will still occur at the whim of whatever government is in power.
Already in constitution Robert Janes, a specialist in Indigenous law with a law firm in Victoria, British Columbia, and other legal experts note that the rights in UNDRIP are already protected by a section of the Canadian Constitution, which guarantees treaty rights.
Janes said the groups he works with see more value in sharing political decision making than establishing new grounds on which to sue the British Columbia government.
Gwich’in Grand Chief Bobbie Jo Greenland-Morgan agreed with that viewpoint, noting that her tribal council has a historical treaty with Canada and a modern land claim agreement with federal and territorial governments.
“We know our rights and they are protected,” she said. “Something like (UNDRIP) is opportunity to strengthen those rights.”
Dene National Chief Norman Yakeleya said that recognizing the rights of UNDRIP could be a “wakeup call” for all levels of government.
“We had 153 years of denial of rights,” he said. “So, we’re coming from a period of denial to a period of recognizing that Aboriginal people ... had a way of life.”
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