Addressing Issues with Canada’s Aboriginal Peoples

British Columbia Premier John Horgan has made a difficult choice on a major hydroelectric project. As well as financial issues, it has a major impact on relations with Aboriginal groups. The financial considerations have determined his choice.

BC’s previous Liberal government began the project, and had spent or committed $4 billion by the time Horgan inherited the file. If he cancelled the project that amount would immediately become a loan for which ratepayers would have to pay without receiving any additional electricity in return.

Completing the project would bring the total cost to more than $10 billion, but ratepayers would not be charged for the resulting debt until electricity started to flow sometime next decade, potentially justifying the decision to complete the project.

Needless to say, the massively over budget travails of the Muskrat Falls project in Labrador would worry him, but he has nevertheless decided to proceed. That choice has been cheered by the thousands of Site C construction workers, but not by some of the affected Aboriginal bands.

Horgan’s life is complicated by his campaign endorsement of the United Nations Declaration on the Rights of Indigenous People (UNDRIP).

It says that governments are expected to obtain “free, prior and informed consent” before “the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”

Although six Aboriginal bands have signed benefit agreements with BC Hydro around the project, some of those bands and all of those who did not sign agreements are displeased that Site C is going ahead.

Horgan offers the weak argument that he did not make the choice to start the project but now has to finish it in the interest of ratepayers. The matter will go to court, but Horgan will not have to deal with arguments about contravening UNDRIP because it is not yet enshrined in BC laws.

The federal Liberals are setting themselves up for a similar dilemma. Their election platform promised implementation of UNDRIP.

UNDRIP has many problematic clauses. For example: “Indigenous peoples have 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.”

How is one to determine which lands have been traditionally owned or otherwise occupied or used? Parts of BC have been claimed by more than one band.

By what mechanism is it deemed that consent has been given? Is it by a national or provincial assembly, or by one or more of the six hundred plus bands, some of whom have only a few dozen members? What happens when some bands strongly support a project while others oppose?

None of these questions has an easy answer.

Justice Minister Jody Wilson-Raybould, a former regional chief of the B.C. Assembly of First Nations, had the thankless task of acknowledging the problem to the Assembly of First Nations (AFN) general assembly in July of 2016: “Simplistic approaches such as adopting the United Nations declaration as being Canadian law are unworkable…”

Enter NDP MP Saganash who introduced a private members bill mimicking the Liberal platform pledge. Add to that a second pledge which requires Liberal MPs to vote for legislation which implements the platform. So, with Liberal support, the bill was passed.

Wilson-Raybould has changed her position. “This step alone, however, will not accomplish the full implementation of UNDRIP. A comprehensive approach, one that our government is committed to, will require other appropriate measures.” A group of six Ministers has been tasked to deliver those measures.

Many of the UNDRIP clauses are like the ones cited here and are susceptible to multiple interpretations. The sweeping promise of wholesale adoption is bound to result in cost and regulatory uncertainty for every resource based project in the country.

At the same time there will be inevitable challenges by some indigenous communities who interpret UNDRIP differently than the government.

This will not be the only disappointment. Pledges to address problems with housing, water, quality, and sanitation on reserves have gone largely unmet. On-reserve education is much the same as the Liberals found it.

The National Inquiry into Missing and Murdered Indigenous Women and Girls has been a fiasco with multiple missed deadlines, no fewer than 22 staff departures, and continuing staff turmoil.

Election promises by an opposition party need to be appealing ideas simply expressed. Voters tacitly understand that the fulfillment will not be exactly as promised.

But when elected, a government should be more disciplined. Minister Wilson-Raybould was right the first time.


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