“Since the province is largely Crown land and First Nations have, collectively, claimed territory covering all of B.C., UNDRIP seems to presume the province is owned by both First Nations and the B.C. public.”
Federal Justice Minister Sean Fraser got into a tangle recently after a reporter asked whether the consent clause in UNDRIP would give First Nations a veto on major projects fast-tracked by the Liberal government. Fraser said the clause necessitated consultation but was not a “blanket veto power.”
Strictly speaking, Fraser was correct. The provisions of the federal UN Declaration of Rights for Indigenous Peoples Act (UNDRIPA) are not legally binding and Canadian constitutional law does not give a veto to First Nations on project approvals or land use.
So why did Assembly of First Nations National Chief Cindy Woodhouse Nepinak immediately lash out at the truth and why did Fraser so swiftly and sheepishly back down, despite correctly stating the view of most UNDRIP scholars and leading Canadian lawyers?
To understand the mixed messaging and ongoing confusion about consent, we first need to understand UNDRIP, how B.C. and Canada have been interpreting it and the expectations it has created among First Nations.
Then we can figure out how to move past it.
In 2019, the BC NDP, under the late Premier John Horgan’s government, passed the BC Declaration on the Rights of Indigenous Peoples Act (DRIPA). At the time, B.C.’s current premier, David Eby, was Attorney General. With the passage of DRIPA, British Columbia was the first and only province in Canada to recognize UNDRIP and adopt legislation that directed all its laws to align with its articles. Support for DRIPA was unanimous, at least at that moment, with the Opposition BC Liberals and BC Greens voting in favour of its passage.
Interestingly, having viewed UNDRIP in action in the province, the Opposition Conservatives are now pledging to repeal it should they become government.
Six years later, a whole team of provincial bureaucrats are continuing to amend B.C. laws to bring them into alignment with whatever interpretation civil servants and their government lawyers have placed on the 46 Articles of UNDRIP.
Given how abysmally vague those UNDRIP Articles are, this is a frightening scenario.
In 2021, Canada passed a federal version of DRIPA (UNDRIPA) and the Northwest Territories passed its own version in 2023. Recently, in the elbows-up, Team Canada context, Prime Minister Mark Carney assured his government’s legislation to speed approvals of major “nation-building” projects will require consultation consistent with the constitution and the Crown’s duty-to-consult.
Confusingly, his government and ministers have also promised to respect the commitments of UNDRIPA.
Depending on Carney’s interpretation of his government’s commitments, this may be a contradictory message since the original guiding document, UNDRIP, and Canadian constitutional law are not in agreement on matters like the requirement for consent.
UNDRIP doesn’t align with Canadian constitutional law
There are two particularly problematic land and resource-related provisions in UNDRIP that are in conflict with constitutional law, but which the BC NDP government appears to have whole-heartedly embraced.
The first is the concept of self-defined Indigenous traditional territories, and the resources within them, being “owned,” as set out in Article 26 of UNDRIP.
The second is a requirement for Indigenous “consent” of any government action that might affect those allegedly owned Indigenous territories. This is the requirement referred to as “free, prior and informed consent” set out in Article 32(2).
It’s this section that many lawyers view as creating an effective veto over government decisions, which is what the federal minister of Justice, Sean Fraser appeared to be trying to clarify.
Many First Nations leaders have argued there is a difference between denial of consent and veto, but even a quick dictionary query defeats this argument.
The issue with “owned” Indigenous territory in Article 26 lies in the breadth of its definition, which is geographically and materially inconsistent with the requirements for proof of Aboriginal title under section 35 of the Constitution Act, 1982.
UNDRIP contends Indigenous ownership of any lands that were occupied or merely used, whereas Canadian law requires proof of regular and exclusive occupation of lands to demonstrate Aboriginal title.
Nuances of duty-to-consult, consent and ownership
On the issue of consent, in circumstances where Aboriginal title has yet to be declared by a court (i.e. most of the British Columbia land base), there is a duty on government to consult, but no legal requirement in Canadian constitutional law for governments to obtain consent from First Nations for government-authorized activities on the provincial land base.
In adopting the Articles of UNDRIP through DRIPA, the BC NDP government unfortunately accepted Indigenous ownership of all claimed traditional territories, along with the requirement it must obtain Indigenous consent for anything it proposes to do on those extensively defined lands.
A First Nation can argue it holds a self-defined territorial ownership of land under Article 26 if its entire claimed traditional territory will, in any way, be affected by the proposed actions or decisions of the provincial government.
Since the province is largely Crown land and First Nations have, collectively, claimed territory covering all of B.C., UNDRIP seems to presume the province is owned by both First Nations and the B.C. public.
But how can this be true?
Under Canadian law, land is owned by either one or the other.
DRIPA overreaches into federal jurisdiction
When Aboriginal title is proven and declared by a Canadian court under section 35 of the Constitution, the ownership of that land vests in the Aboriginal community that won the title claim. At that point, it is no longer public, or Crown, land.
As well, under the constitution, until Aboriginal title claims are legally proven and declared, the province can manage public lands while fulfilling section 35 duties of consultation. And with respect to unproven claims, it can meet the duty of accommodation, where appropriate.
The province of B.C., on the other hand has already given joint decision-making powers to some First Nations and is now exploring awarding exclusive decision-making over public lands in cases where title has not been legally proven.
The concept of a general Indigenous territory-wide jurisdiction – often invoked to close provincial parks to the public – is, like the concept of “exclusive Indigenous jurisdiction,” another government idea that is constitutionally problematic.
The constitutional validity of DRIPA will soon be in front of the courts, as a tiny British Columbian community organization in Pender Harbour on the Sunshine Coast has launched a constitutional legal challenge to DRIPA. The results of the lawsuit could result in DRIPA being invalidated in BC.
As far as constitutional division of powers go, there is every likelihood that B.C.’s DRIPA is unconstitutional for invading the exclusive sphere of federal legislative jurisdiction under the Constitution Act, 1867. And the passage of the federal UNDRIPA does nothing to save the provincial legislation from being ultra vires – outside of the province’s sphere of constitutional competence.
This is one of the arguments being put before the courts, the other being that DRIPA is also in its essence undemocratic.
Mixed messages from both governments
Lately, Premier Eby seems to be watering down his own DRIPA-imposed consent obligations by now saying private resource projects will not proceed in First Nations “core territory” without consent.
Core territory is not a legal term under Canadian law.
Who will define what core territory is? Government? First Nations?
First Nation leaders have already decried Eby’s pronouncement, arguing that their title (presumably as defined under Article 26 of UNDRIP) blankets entire claimed territories, not just “core” lands.
Canadian law has consistently found Aboriginal title only within limited areas of land that were regularly occupied as of 1846. Canadian courts have to date awarded First Nations title to only about five per cent of territorial claims.
The Premier has repeatedly stated his government wants to avoid court battles and instead reach land use agreements with First Nations. So far, this has variously entailed embracing or declaring title on Crown land, private property, and provincial parks. The province has also bypassed the courts to award title to the entirety of some territorial claims – Haida Gwaii being the prime example.
By now focussing on core territory, does Mr. Eby mean he will only seek consent for projects on land that would be subject to a strong legal claim for Aboriginal title?
Or is he referring to lands not subject to the many overlapping claims of multiple First Nations in B.C.?
Who knows.
The law on this matter, however, is very clear – even in core Indigenous territory, there is no legal requirement that government must obtain consent before making decisions. Mr. Eby nonetheless continues to insist that such consent must be obtained.
Whatever the Premier’s intentions, which seem to change from time to time, more uncertainty is created for industry and potential investors in major projects given that Canadian law requires no such consent in the first place.
Governments backtrack on UNDRIP commitments
Perhaps the mixed messaging from the provincial and federal governments is a reflection of both trying to back away from their impractical, self-imposed DRIPA/UNDRIPA commitments.
Elected officials at both levels may now be realizing how onerous and anti-resource development those legislative requirements have become, particularly as we face the urgent task of kick-starting an under-performing economy.
The best outcome would be for the Eby and Carney governments to stand down their ideological agendas and repeal their respective UNDRIP implementation legislation. As the Pender court case suggests, the public is growing weary of an UNDRIP-based “reconciliation” approach that ignores our rule of law, sowing only confusion and division.
It’s time to ground Crown-Aboriginal relations in Canadian constitutional law and its associated caselaw dealing with the proof and content of Aboriginal title. In this way, we can equitably and efficiently recognize Indigenous rights, while developing the resources we need and the constructive outcomes British Columbians expect.