Vancouver Sun

In their power-sharing agreement, the B.C. New Democrat and Green parties commit to support the United Nations Declaration on the Rights of Indigenous Peoples and the Supreme Court of Canada’s 2014 Tsilhqot’in decision, calling the documents “foundational” to their shared policy agenda. Central to both is Indigenous peoples’ right to free, prior and informed consent when projects or policies affect them.

The Kinder Morgan pipeline and Site C dam feature prominently in the agreement. The parties pledge to use every tool at their disposal to scuttle the pipeline while calling into question the dam by subjecting it to a rigorous review, rendering the future of each uncertain.

Alberta Premier Rachel Notley recently warned B.C. that “provinces do not have the right to unilaterally stop projects” like the Kinder Morgan pipeline. Notley, however, has forgotten or overlooked a critical point. Where First Nations’ territory stands to be affected, neither B.C. nor Alberta nor the federal government has the authority to make unilateral decisions over lands or waters without the free, prior and informed consent of Indigenous peoples.

Kinder Morgan’s pipeline expansion has provoked numerous lawsuits and major protests, including from First Nations who fear the impacts of a spill on their land or waters. However, the B.C. and federal governments have approved the project over their objections. Prime Minister Justin Trudeau has asserted that the government can approve the project without seeking or obtaining the consent of the potentially affected First Nations. That position is difficult to reconcile with his government’s endorsement of the UN Declaration.

Similarly, the Site C dam is opposed by some Treaty 8 First Nations because of environmental and cultural impacts and adverse effects on their treaty rights. Indeed, the project’s 2014 Joint Review Panel found it would “significantly affect the current use of land and resources for traditional purposes by Aboriginal peoples.” Some of the affected First Nations say they have not been properly consulted.

The extent to which the agreement between the NDP and Green party will transform B.C.’s relations with Indigenous peoples remains to be seen, but the previous government’s embarrassing disregard for their rights means there is only room for improvement.

So what might it look like for the Province to comply with the UN Declaration and the Supreme Court’s Tsilhqot’in decision?

First, the Province can do a much better job of consulting with Indigenous peoples early and regularly when their territory would be impacted by proposed projects such as large-scale energy developments. When a project like the Kinder Morgan pipeline crosses provincial boundaries, B.C. can insist that the federal government adequately consult with Indigenous peoples.

Second, as the UN Declaration and the Supreme Court decision instruct, B.C. should treat First Nations as partners with a shared role in decision-making. The NDP and Green parties have an opportunity to transcend the divisive and adversarial relations with First Nations that have marked B.C. politics. Indigenous peoples should not have to seek recourse in the courts every time they want to have a voice in projects that affect them. In the interim, the B.C. NDP has said that as government they would join First Nations as interveners in the existing court challenges. To see the B.C. government join with First Nations as partners in such legal challenges would certainly represent a historic shift.

Third, the Province should establish — by law — that consultations with Indigenous peoples are undertaken in order to obtain their free, prior and informed consent. The rights to self-determination and free, prior and informed consent, recognized by the UN Declaration and in other international forums, include not just the right to grant approval to these large-scale energy projects, but also the right to withhold it.

Finally, the NDP and Green parties are taking an important step in referring the Site C dam to the B.C. Utilities Commission for an assessment of the project’s economic viability. The Indigenous rights enshrined in the UN Declaration should also spur the parties to evaluate the extent to which the previous government subjected the project to prior consultation, and whether it has obtained the consent of affected Indigenous communities.

Jason Tockman is a Postdoctoral Researcher at the University of Washington’s Jackson School of International Studies. He holds a PhD in Political Science from the University of British Columbia, and studies Indigenous rights and the implementation of the UN Declaration on the Rights of Indigenous Peoples in the Americas.