Adam Pankratz: UNDRIP is strangling Canada's economy
The Edmonton-Ottawa memorandum of understanding will be meaningless if First Nations are given a veto, even in areas they don't legally control .
If there is one takeaway from the recent memorandum of understanding (MOU) between the federal and Alberta governments on a potential new oil pipeline to the West Coast, it’s that Canada needs to abandon the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and return to our own framework for reconciliation: Section 35 of the Constitution Act, 1982.
UNDRIP is proving to be a disaster. In British Columbia, we are seeing firsthand the extraordinarily deleterious effects of UNDRIP through its legislative application in the Declaration on the Rights of Indigenous Peoples Act, which B.C. passed in 2019. The act seeks to bring the province’s laws into conformity with the principles of UNDRIP, and the effects are already proving to be detrimental to the province — and to the cause of reconciliation.
Among the 46 articles of UNDRIP, certain ones are proving to have more immediate impacts than others. Article 26, for example, states that, “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.” That is to say, if an Indigenous group claims a territory, they own it and all its resources.
Yet the standard that the Supreme Court of Canada uses as its test for declarations of Aboriginal title is not this simple. In the Canadian context, the court has described Aboriginal title as, “The unique product of the historic relationship between the Crown and the Aboriginal group in question.” In British Columbia, the test is proof of exclusive occupancy as of 1846.
This results in declarations of Aboriginal title to a much smaller piece of land than the traditional or claimed territory. In the landmark Tsilhqotʼin Nation v British Columbia case, for example, the Supreme Court granted Aboriginal title to less than five per cent of the band’s traditional territory.
In August, a B.C. judge found that Aboriginal title is a “senior interest” to fee simple title, and that B.C.’s Land Title Act doesn’t necessarily protect private property from Aboriginal title claims. At a similar time, and clearly following the UNDRIP principles, the B.C. government signed an agreement, which acknowledged the Haida Nation’s Aboriginal title over all of Haida Gwaii.
Put those two events together and you now have a situation where private land owners on Haida Gwaii appear to own their land at the pleasure of the Haida, not by indefeasible title under the Land Title Act.
Another UNDRIP principle that is causing extreme confusion is Article 32.2, which states that, “States shall consult and co-operate in good faith with the Indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting
their lands or territories and other resources.”
This “free and informed consent” requirement goes much further than the Supreme Court’s “duty to consult” doctrine. It is impossible to see the confusion emanating from nearly everything the government does these days on large projects of national or economic importance and not recognize how UNDRIP is slowly sinking Canada’s economy as politicians speak of the necessity to get First Nations’ consent.
The Assembly of First Nations recently passed a resolution rejecting changes to the oil tanker ban as outlined in the MOU between Alberta and the federal government. B.C. Premier David Eby has also said that lifting the ban would endanger billions of dollars worth of projects that require the consent of First Nations in the area. This is quite clearly UNDRIP once again raising its veto head, which the B.C. NDP are happy to uphold.
A recent poll found that a majority of British Columbians are in favour of a pipeline to the coast. Yet UNDRIP, an aspirational document never intended to be law for Canada, is throttling the ability of Canada’s economy to expand. This can only hurt reconciliation, along with all the hard-working Canadians who are staring down a dismal fiscal outlook. It’s time for Canada to ditch UNDIRP and return to Sec. 35 of our own Constitution as the blueprint for reconciliation and economic prosperity.