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Can Liberals meet the challenge of UNDRIP?

By Elizabeth May      

The support for UNDRIP is historic and significant, writes Green Party leader Elizabeth May. Making that pledge more than window dressing on a continuation of colonial policies is the challenge.

NDP MP Romeo Saganash, pictured March 20, at the House Affairs Committee. The Hill Times photograph Andrew Meade
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On May 30, a historic bill received its final approval in the House. It was particularly exceptional in that it was a private member’s bill impacting every aspect of federal government conduct in relation to the land, natural resources, and Indigenous peoples. It was even more meaningful in that the sponsor, NDP MP Romeo Saganash, is himself Cree and a residential school survivor.

I was honoured to cast my vote for Bill C-262. It passed by a margin of 206-79, with only the Conservative members in opposition. It moves to the Senate, increasing the efforts to require our government to respect the letter and the spirit of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).

It would never have passed the House vote if not for another Indigenous parliamentarian, our minister of justice, Jody Wilson-Raybould. Ms. Wilson-Raybould is part of a powerful and influential family of the We Wai Kai Nation of Vancouver Island. Support for UNDRIP was part of the Liberal platform. Still, Liberal support for C-262 was not a foregone conclusion. The challenges of actually respecting UNDRIP in our current system of laws will be challenging. It is a testament to principle that Ms. Wilson-Raybould and the Liberal caucus supported Mr. Saganash’s bill.

I wonder how many MPs have read UNDRIP. In 34 articles, it sets out rights for the Indigenous peoples of the planet. As a settler-culture Canadian, I believe our entire society will be transformed for the better through respect for UNDRIP. The Indian Act cannot stand against the challenges of UNDRIP. Decisions do not merely require pro forma consultation, although it is inconsistent with Section 35 of our Constitution to do so.

For example, this is what is required by Article 26:

  1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
  2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
  3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

As the bill makes its way through the Senate, it is worth considering how we can respect UNDRIP while continuing with a number of controversial projects that fail to meet the test of Article 26.

The Site C dam in British Columbia poses particular challenges. It is opposed by two Treaty 8 First Nations—the West Moberly and the Prophet River First Nations. The environmental assessment of Site C, conducted under the pre-Harper credible Canadian Environmental Assessment Act as a joint federal-provincial review, lacked the mandate to rule on whether the project violated Section 35 of the Constitution. It did rule that the project would cause irreparable environmental damage as well as deprive First Nations of treaty-protected rights to hunting and fishing. The review was excellent and fair. The panel also urged that there be a public utilities board review as it seemed unlikely the project was needed or economical.

The Harper cabinet ignored that advice and ruled the project in the national interest. The Trudeau cabinet continued in an unbroken thread of approvals. How can anyone credibly claim there has been free, prior and informed consent?

Even more so does the recent announcement to buy the original 1953 pipeline built by Trans Mountain and bought by Kinder Morgan at a fraction of the price, meet the conditions of UNDRIP? How can the Government of Canada credibly claim to be setting up a Crown corporation in the national interest to force through a pipeline opposed by most First Nations along its route and all who represent a tradition of fishing and access to the seas and simultaneously respect UNDRIP?

When Environment Minister Catherine McKenna tabled the entirely unacceptable, Harper-lite version of environmental assessment, Bill C-69, she was asked if the Kinder Morgan project would have been approved under the new process. She did not hesitate in saying it would.

This is a truly remarkable claim. I had not realized the Liberals were in possession of a time machine. There is no other way than a time machine to provide Indigenous peoples with free, prior and informed consent. One must literally go back in time to test First Nations’ prior consent

We have to wait for the decision of the Federal Court of Appeal on Kinder Morgan and whether the permits were, like Enbridge’s northern pipeline, granted in violation of First Nations rights. The support for UNDRIP is historic and significant. Making that pledge more than window dressing on a continuation of colonial policies is the challenge.

Green Party leader Elizabeth May represents Saanich-Gulf Islands, B.C.

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