Since the signing of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007, the rights of Indigenous peoples have been acknowledged by many countries internationally. In Canada, pressures to safeguard these rights have pushed the government to commit to work with Indigenous peoples. This is a significant shift from policy of past, especially considering that Indigenous people are victims of an ongoing cultural genocide.
Cultural genocide came part and parcel with colonization in America. The Canadian state forcibly removed children from Indigenous homes and placed them into government-funded Indian Residential Schools.
Arguably, this genocide is ongoing, given the Cross-Canada epidemic of missing and murdered Indigenous women and girls, and the Millennium Scoop. The Millennium Scoop refers to the alarming high number of Indigenous children cared for by social services. Clearly, legacies of colonialism remain in Canada, making reconciliation a necessary step for decolonization.
As part of the settlement of the Indian Residential Schools Settlement Agreement, a class-action lawsuit filed in response to the historical mistreatment of Indigenous peoples, the Canadian government was tasked with establishing the Truth and Reconciliation Commission of Canada (TRC).
Prime Minister Justin Trudeau has promised to uphold the recommendations set forward by the Commission. The Commission calls for an adoption of the UNDRIP to safeguard a duty to obtain “free, prior, and informed consent (FPIC) of Indigenous peoples before proceeding with economic development projects” that affect Indigenous peoples (TRC Call No. 92, I). The duty extends the right to decide, which protects Indigenous treaty rights recognized by section 35 of the Constitution Act, 1982 and Indigenous resources by setting a legal standard for the Crown to consult with Indigenous peoples.
The right to decide is acknowledged by the Supreme Court of Canada under the duty to consult, this requiring the Government of Canada to consult with Indigenous peoples about proposed projects and decisions that infringe on Indigenous treaty rights. In essence, the purpose of this duty is to promote reconciliation by extending meaningful recognition of the legitimacy of Indigenous rights and treaty rights. However, Canada’s Trans Mountain pipeline jeopardizes these efforts.
Canada’s controversial Trans Mountain Expansion Project is currently developing a pipeline between Edmonton, Alberta and Burnaby, British Columbia. Cabinet approved the project back in 2016, yet, since its conception, Indigenous communities have expressed disagreement with the project due to the high risk of oil spillage and water contamination that could impact the environment and encroach upon unceded territories. Regardless of the duty to consult with Indigenous peoples, these concerns were not addressed prior to the Cabinet’s approval.
Later, in August 2018, the Court accepted challenges brought forward by opposition groups. The ruling recognized that the project’s environmental blueprint was inadequate with regards to marine-shipping and that the Canadian government did breach its duty to consult. Re-approval became conditional on the fulfillment of 156 measures to address the concerns accepted by the Court. This included a requirement to consult with Indigenous peoples.
Though the Courts claim this duty has since been met, consultation on the part of government has been a disaster. Indigenous activists maintain this, voicing concerns in a secondary appeal to the Federal Court of Appeal in 2019. The ruling on the appeal quashed petitions against the pipeline, maintaining that consultation had been adequately met in 2018.
By placing significant limitations on the duty to consult, this is a huge step backwards for reconciliation. The ruling clarifies that the duty to consult is not comprised of the need for the consent of Indigenous peoples, even though it allows for the violation of established Indigenous treaty rights. This is despite the UNDRIP’s call for consent as a necessary part of meaningful consultation. The duty to consult is thereby rendered a band-aid response to the much deeper issue of colonialism. Further, this belittles prior steps made towards reconciliation, as this exhibits the state’s prioritization of industry over Indigenous rights.
Did the Canadian government deliver meaningful accommodation and consultation?
The Government of Canada’s failure to undergo consultation with Indigenous peoples about the pipeline reflects the colonial Indian policy, rendering it incompatible with reconciliation.
In October 2018, the Canadian government began steps towards extending consultation. Efforts by the government included establishing nine consultation teams across Alberta and B.C. However, efforts by the government are made meaningless as the state’s negligence at the outset of the project turned subsequent consultation into a box-ticking exercise for the project’s re-approval. The process also worked to appease public tensions brought forth by Canadians that were joining Indigenous people in solidarity. This questions whether any consultation would have taken place if Indigenous groups had not stood up for their rights in the first place.
Nevertheless, the consultation process was vague and coercive, often perceiving Indigenous peoples as partners for resource management, as opposed to entitled land holders on unceded territories. This was not about mutual respect, as the government had portrayed it to be. The goal was simply to advance the pipeline at minimal cost. If the state was seriously committed to reconciliation and the building of relationships with Indigenous peoples, a breach of the duty to consult would not have taken place before the primary approval in 2016.
There is a need for increased dialogue between the Government of Canada and Indigenous peoples across the country. Both groups must be viewed as equals while making decisions regarding development projects in Canada. This can only be achieved when the government accepts Indigenous peoples as partnered occupants on Canadian soil within and beyond legal spheres. Consultation cannot be a rushed process. It must include multidimensional areas of interest so that it might not be confined by economic favouritism and governmental interests. Further, it cannot continue to assume a homogeneous Indigenous identity. Consultation with some is not consultation with all.
By failing to meaningfully consider Indigenous peoples as equal partners that are entitled to certain rights, the Government of Canada can expect to continually be taken back to court by Indigenous groups that are increasingly seeking to claim their own rights. Ultimately, this process delays development and endangers scarce natural resources. The right to decide is essential for not only for reconciliation between the Canadian government and Indigenous peoples but also for Canadian national development as well.
Edited by Gabriela McGuinty.
Photo Credits: “Consent Wet’suwet’en Solidarity” by Jason Hargrove, February 15, 2020, licensed under CC BY-NC 2.0. No changes were made.
Riyana Karim-Hajiani is a student at McGill University pursuing a B.A. in Political Science at the Honours level. Currently in her second year at McGill, she has joined the Catalyst as a staff writer. Particularly, she is interested to explore Indigenous legal issues pertaining to the laws that affect Indigenous peoples and the rights of Indigenous peoples in Canada and internationally.