Trudeau should learn from B.C. and rethink legislating UN declaration into federal law

The United Nations Declaration of the Rights of Indigenous People (UNDRIP) was approved by the UN General Assembly in 2007. Its most controversial feature is a call for “free, prior and informed consent” (FPIC) by Indigenous peoples before economic development projects can take place on lands they inhabit or to which they may have a claim.

Because UNDRIP is neither a convention nor a treaty, it is not legally binding unless it is adopted in legislation. Canada opposed UNDRIP at the UN because FPIC and similar sweeping provisions in the document are not consistent with Canadian constitutional law. The government of Stephen Harper adopted it in 2010 with the proviso that it was a statement of aspirations but not legally binding. The same position was taken by the United States, Australia and New Zealand.

Since 2010, Indigenous advocates have made several attempts to enshrine UNDRIP in legislation, using ambiguous language about its legal impact. NDP MP Roméo Saganash authored two private member’s bills that ultimately failed to receive passage in Parliament. Prime Minister Justin Trudeau has promised, in the recent Liberal campaign as well as in the December 2019 speech from the throne, to legislate on UNDRIP, though a draft bill has not yet been tabled.

British Columbia has gone the farthest by passing Bill 41 in November 2019. This legislation again used ambiguous language, saying on the one hand that the government must take all necessary steps “to ensure the laws of British Columbia are consistent with the Declaration,” and on the other hand that “nothing in this Act is to be construed as delaying the application of the Declaration to the laws of British Columbia.” The province has said Bill 41 did not repeal existing laws to adjust for UNDRIP, but that, as other laws are amended or passed, they will be aligned with the UN Declaration. But in politics it’s not so much what you say as what other people hear. Many Indigenous advocates interpreted Bill 41 as having immediately made UNDRIP and FPIC the law in B.C.

The adoption of Bill 41 led directly to the proliferation of blockades on Canadian National Railway lines and elsewhere. The traditional Wet’suwet’en chiefs who oppose the presence of the Coastal GasLink pipeline in their territory had already claimed a right to veto construction. Passage of Bill 41 led other Indigenous advocates as well as the United Nations Commission on the Elimination of Racial Discrimination to chime in. When the RCMP took down the barricades put up by local supporters of the traditional Wet’suwet’en chiefs, other blockades sprang up across the country.

The Wet’suwet’en episode illustrates the practical difficulties involved in trying to legislate UNDRP and FPIC. Some Indigenous advocates are not satisfied with ambiguous language; to them, FPIC means an immediate and absolute veto over economic development projects, even though these projects have passed all the tests of current Canadian constitutional law, including extensive consultations with affected First Nations and approval by elected band councils.

Starting with the Haida Nation decision in 2004, Canadian courts have established an extensive body of constitutional law around the concept of “they duty to consult” First Nations about economic development projects on their lands. The Supreme Court of Canada has said several times, most recently in the TMX pipeline case, that the right to be consulted is not a right to veto.

Attempting to layer UNDRIP and FPIC over this existing body of law will produce the kind of chaos we have witnessed recently over the Coastal GasLink project. But federal legislation will be worse, because it will affect the whole country, not just one province. Prime Minister Trudeau will be well advised to observe what has happened in the wake of B.C.’s Bill 41 and reconsider his promise about legislating UNDRIP.