Prime Minister Mark Carney (right) and Alberta Premier Danielle Smith announce a proposed pipeline from Alberta to the B.C. coast in Calgary on July 2.Todd Korol/The Canadian Press
For years, Justin Trudeau’s Liberal government indulged a dangerous fiction, that Indigenous bands held a veto over industrial projects that impaired their rights under the Constitution.
The federal government never stated that explicitly (and official policy to the contrary never changed), but it gave broad hints, including by enacting a law in 2021 that ingested the United Nations Declaration on the Rights of Indigenous Peoples. That UN declaration proclaims the need for “free, prior and informed consent.”
That might seem to amount to a veto, but it does not, even when working within the boundaries of the UN document, which contemplates paying “fair and equitable compensation” if such consent is not obtained.
Ottawa moves to list West Coast pipeline as project of ‘national interest’
Canadian constitutional law is clear enough: Governments have an obligation to consult with Aboriginal peoples and, when merited, to accommodate their interests when their rights are affected. The degree of consultation and accommodation rises along with the infringement on those rights. Negotiations must be entered to in good faith (by both parties, it’s worth noting).
The law itself was relatively clear, but the Liberals’ political rhetoric muddied the waters, even after Mark Carney succeeded Mr. Trudeau as Prime Minister. Justice Minister Sean Fraser inadvertently provided clarity last summer when he noted that there was “not necessarily blanket veto power” for Indigenous bands. He hastily (and wrongly) backtracked.
Fast forward to earlier this month, with the Carney government moving to list a proposed bitumen pipeline to the Pacific Coast as a project in the national interest. Over the weekend, the Union of British Columbia Indian Chiefs issued an open letter calling on Mr. Carney and Alberta Premier Danielle Smith to stop the pipeline project until they obtain the free, prior and informed consent of, apparently, every Indigenous band in the province, at least.
The UBCIC makes the remarkable assertion that since a) the pipeline will result in increased greenhouse gas emissions and b) greenhouse gas emissions know no boundaries that therefore c) the rights of every First Nation are affected. The UBCIC doesn’t purport to speak for Indigenous groups outside the province, but its logic would equally apply to the entire country.
In addition, the UBCIC claims “equity ownership, loan guarantees, revenue-sharing, employment, or other proposed benefits” cannot be treated as “substitutes for consent.”
Group representing First Nations in B.C. calls on Carney, Smith to halt West Coast pipeline
There are some fundamental legal problems with the UBCIC position (although the Carney government’s main problem is political, not constitutional). If one were to accept the UBCIC position, it would bestow veto power on any Indigenous band in the country on any substantial economic development anywhere else.
The greenhouse-gas argument is a non-starter, in part because the contribution of a specific project to the overall climate change problem is vanishingly small. That argument, at least, can be readily dismissed.
Not so easily brushed aside is the UBCIC’s assertion about free, prior and informed consent, in part because the Carney government has not made clear where it stands, Mr. Fraser’s fleeting detour into clarity notwithstanding.
To be clear, the ideal outcome would be not just the free, prior and informed agreement by Indigenous groups affected by a pipeline, but their enthusiastic embrace of the project. But if that worthy goal cannot be achieved, what then?
“No pipeline” cannot be the answer. Canada’s economic sovereignty is at stake. A bitumen pipeline that expands access to Asian markets will reduce this country’s dependence on the United States, and vulnerability to the whims of the White House.
Specific concerns from Indigenous groups directly affected by the project should be the focus of consultation, and accommodation, efforts from the federal government. But Ottawa should make it clear that the project is in the national interest, and must proceed.
To be fair to the Carney government, the process it started earlier this month is in keeping with that end. Alberta says it expects the pipeline to receive the national-interest designation by Oct. 1. Mark that as the day that the Liberals, belatedly, will make clear the limits of consultation and accommodation.