A Federal Court of Appeal ruling on the Trans Mountain pipeline expansion highlights the need for Canada to legally entrench the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), advocates say.
Regional Chief for British Columbia Terry Teegee was among those who voiced disappointment at the court decision, which found the Canadian government met its duty to consult First Nations on the pipeline project.
“Today we see another court decision that is another reminder that the UN Declaration on the Rights of Indigenous Peoples, and free, prior and informed consent are the necessary way forward,” he said.
“Obviously, the process is still flawed. We can replace conflict and court cases with progress, prosperity and stability.”
The Assembly of First Nations also called for full implementation of UNDRIP legislation in Canada following the court decision.
“The Assembly of First Nations will continue to push to ensure all policies, legislation and practices are consistent with First Nations inherent and Treaty rights, the United Nations Declaration on the Rights of Indigenous Peoples, and for federal legislation to implement the UN Declaration on the Rights of Indigenous Peoples,” a statement read.
The Trudeau government has long promised to enshrine the UN declaration into Canadian law, but it remains controversial in Canada because of the stipulation of “free, prior and informed consent.”
Minister of Justice David Lametti has been tasked with introducing the legislation by Trudeau, spokesperson Allison Storey said in an email statement to Global News.
“In the Minister of Justice and Attorney General of Canada’s mandate letter, the Prime Minister tasks the Honourable David Lametti with introducing co-developed legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration) by the end of 2020,” the statement read.
“By taking this step in collaboration and cooperation with Indigenous peoples, we will create greater certainty, clarity and prosperity for all Canadians. We are committed to developing an approach that will be inclusive, efficient and focused on realizing the full potential of the UN Declaration to advance reconciliation in Canada.”
Tuesday’s unanimous court decision on the pipeline cleared a major legal hurdle for construction to continue on the expansion from Alberta’s oilsands to B.C.’s coast — a move long contested by several Indigenous communities in B.C. The Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band and a coalition of small First Nations in the Fraser Valley were part of the legal challenge and argued that the government’s consultation with them was inadequate.
The communities say they oppose the expansion because of the risk of oil spills and increased emissions.
Lori Campbell, director of the Waterloo Indigenous Student Centre at St. Paul’s University College, told Global News that a key element of UNDRIP is to ensure Indigenous communities have “free, prior and informed consent” in matters that impact them — for example, pipeline projects that run through their territory.
“Free, prior and informed consent doesn’t mean that the pipeline can’t go ahead. It means that it can’t go ahead through that particular territory,” Campbell said.
“Indigenous Peoples in certain territories are saying, ‘Not in my backyard, not on our territory.'”
However, Campbell noted that clause is already present in other parts of Canada’s legal system so it’s not guaranteed to change anything.
UNDRIP reaffirms what the Supreme Court of Canada already ruled in 1997 — that governments must consult Indigenous groups prior to making decisions that might impact their lives.
The declaration is also in line with Section 35 of the Canadian Constitution, which states: “The existing Aboriginal and treaty rights of the Aboriginal Peoples of Canada are hereby recognized and affirmed.”
Section 35 also says: “For greater certainty, in subsection (1) ‘treaty rights’ includes rights that now exist by way of land claims agreements or may be so acquired.”
While she supports Canada entrenching UNDRIP into law, Campbell noted it may not guarantee the change Indigenous leaders hope.
“I also wonder if the Supreme Court has already confirmed this, that in this territory, the hereditary chiefs in this community have the right to sovereignty over their land and territory. I don’t know, would UNDRIP being implemented at this point actually be any different?” she said.
Campbell says it comes down to whether the government will follow through on the Supreme Court ruling, the Canadian constitution and UNDRIP, which is already international law.
“They’re all saying this is what we need to do,” she said.
Despite criticism from Indigenous communities over the court ruling, Minister of Natural Resources Seamus O’Regan said in a statement on Tuesday that the pipeline expansion will “help advance reconciliation with Indigenous Peoples” through economic opportunities.
“The government of Canada is committed to a renewed relationship with Indigenous Peoples and it knows that consultations on major projects have a critical role to play in building that renewed relationship,” the statement read. “Canada will continue to engage in Indigenous communities at each step of the project in the months and years to come.”
What happens next?
Construction on the federally owned project has begun at terminals and along the right-of-way in Alberta, but about 88 per cent of the detailed route in Metro Vancouver and the Fraser Valley has yet to be approved.
Indigenous communities and leaders said the issue of the pipeline, despite the federal court ruling, was not over.
The four Indigenous groups — Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band and the coalition of small First Nations in the Fraser Valley — are still deciding whether to seek leave to appeal to the Supreme Court of Canada but said they would pursue all available options to stop the project.
— With files from the Canadian Press