VICTORIA — The New Democrats are taking the first step this week to reconcile B.C. laws with the United Nations Declaration on the Rights of Indigenous Peoples, which John Horgan endorsed three years ago.
The enabling legislation, scheduled for introduction on Thursday, is patterned after a federal bill that died on the Senate order paper when parliament adjourned for the national election. That measure, crafted by NDP MP Romeo Saganash, obliged Ottawa to do three things.
First: “Take all measures necessary to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples.” also known as UNDRIP.
Second: “Develop and implement a national action plan to achieve the objectives of UNDRIP.”
Third: “Every year submit a report to each house of Parliament on the implementation of the (aforementioned) measures and plan.”
B.C. will set a similar process in motion, according to Scott Fraser, the NDP minister of Indigenous relations and reconciliation.
“The legislation is going to create a framework for reconciliation for government in B.C.,” Fraser told Rob Shaw of The Vancouver Sun at the outset of the current legislative session.
“It’s about human rights, but also about bringing certainty and predictability for everybody on the land base,” he continued. “We’re hoping we as a model can show how to do this right.”
While the New Democrats can boast at being first out of the gate at the provincial level with UNDRIP legislation, they are venturing into an area with far-reaching implications.
But for this province, with its vast base of land and resources, mostly unceded by First Nations, the most critical is Article 32.
“Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources,” it reads in part.
“States shall consult and cooperate in good faith with the Indigenous peoples in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources.”
The insistence on free, prior and informed consent has been interpreted as granting First Nations a veto in all but name over development within their traditional territories.
“This is a de facto veto of natural resource projects, potential pipelines and others, for our First Nations,” is how Brad Wall, the former premier of Saskatchewan put it during debate over the federal legislation.
The Assembly of First Nations leader, Perry Bellegarde, characterized the UN declaration as recognizing “the right to say yes and the right to say no.”
Other provisions heighten the stakes for B.C. and its more than 200 recognized First Nations.
Article 28 grants Indigenous peoples “the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.”
Given the absence of treaties over most of B.C., the lands, territories and resources that have been confiscated, taken, occupied used or damaged without free, prior and informed consent could constitute pretty much the entire province.
Now here’s what the UN declaration has to say about remedies: “Compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.”
In defence of the decision to press ahead with UNDRIP legislation, the New Democrats are assembling an impressive group of experts to validate the decision Thursday and play down the implications.
Horgan is already on record as insisting that free, prior and informed consent is not the same as a veto.
“Nowhere in the UN declaration on the rights for Indigenous peoples is there any reference to vetoes of any kind,” he said after endorsing UNDRIP in September 2016.
But on other occasions he has sounded two-faced on the issue. In opposing the expansion of the Trans Mountain pipeline, he has insisted that it is not enough that many First Nations along the route have supported the project.
“I just reject the notion that this is a majority-rule situation,” he has said, implying that every Aboriginal rights and titleholder along the route has a veto.
At the same time, he brushed aside the view that opposition to Site C from two of the Treaty 8 First Nations should be enough to halt construction of the hydroelectric dam on the Peace River.
But to the degree that the provincial legislation is based on its federal counterpart, there’s no need to get carried away with the implications.
The federal bill, number C-262 on the order paper for the last parliament, only provided a framework for reconciling legislation with the declaration.
It did not rewrite a single piece of legislation nor provide a mechanism or schedule for doing so.
Moreover, the federal government was given 20 years to report annually on its progress in ensuring the consistency of legislation with UNDRIP principles and achieving the other objectives of the UN declaration.
If the New Democrats adopt a similarly leisurely schedule, the current government and its validators could be long gone from the political arena by the time the objectives are achieved.