B.C. Premier John Horgan speaks to Indigenous leadership conference in Vancouver, Nov. 5, 2019. (B.C. government)

B.C.’s pioneering Indigenous rights law adds to confusion, conflict, study finds

Pipeline, rail blockades spread across Canada after UNDRIP vow

Premier John Horgan’s effort to pioneer the United Nations’ Indigenous rights declaration in B.C. law fuelled blockades aimed at stopping his government’s signature natural gas project, a new study concludes.

Prime Minister Justin Trudeau should heed the results of B.C. legislation adopting the UN Declaration on the Rights of Indigenous People before he fulfils his promise to follow suit on a national level, Indigenous rights specialist Tom Flanagan concludes in a paper for the Fraser Institute published Tuesday.

When B.C. passed its framework law in November 2019, Horgan and his Indigenous Relations Minister Scott Fraser repeatedly said it does not constitute a veto, despite its adoption of the UNDRIP principle of “free, prior and informed consent” by Indigenous people over resource development in their traditional territories.

Flanagan notes that B.C.’s Bill 41 promises to both adopt the principles of UNDRIP and exempt B.C. laws from it, with “ambiguous language” that Indigenous advocates have interpreted as they see fit.

“The adoption of Bill 41 led directly to the proliferation of blockades on Canadian National Railway lines,” Flanagan writes. “Those traditional Wet’suwet’en chiefs who oppose the presence of the Coastal GasLink pipeline in their territory claimed that Bill 41 gave them a right to veto construction.”

RELATED: B.C. Liberals call for ban on foreign pipeline protest fund

RELATED: If this isn’t an Indigenous veto over development, what is?

Efforts by Fraser and federal Crown-Indigenous Relations Minister Carolyn Bennett to negotiate with pipeline opponents have been repeatedly rebuffed with the same response: RCMP and Coastal GasLink must leave Wet’suwet’en asserted territory, despite extensive consultation, local benefit agreements with all five Wet’suwet’en communities and 15 others, and a court order to clear roadblocks at worksites in northwestern B.C. The same demand was echoed by Mohawk protests in Ontario and Quebec, and student protests that attempted to blockade the opening of the B.C. legislature.

“One faction of one of these 20 first nations – some but not all of the hereditary chiefs of the Wet’suwet’en – opposed the pipelines in spite of the agreements and tried to block construction in the face of two court injunctions,” Flanagan writes. “Their supporters felled trees across the road, partially cut other trees for mantraps, and stockpiled raw ingredients for making firebombs.”

Flanagan notes that former justice minister Jody Wilson-Raybould has warned that UNDRIP can’t be imposed over Canadian law, but must be expressed through Section 35 of Canada’s Charter of Rights and Freedoms. Ousted as justice minister by Trudeau, Wilson-Raybould is a lawyer, a member of the Kwagiulth people of the B.C. coast, and daughter of Hemas Kla-Lee-Lee-Kla (Bill Wilson), one of the architects of aboriginal rights in Canada’s Constitution Act of 1982.

B.C.’s adoption of Bill 41 has little immediate effect on provincial law, but its effect on the UN itself soon after it passed in November.

“In early January 2020, three major projects came under attack from a UN agency on ‘free, prior and informed consent’ grounds,” Flanagan writes. “The Site C hydroelectric project in northeastern B.C., the Coastal GasLink pipeline connecting B.C. gas fields to the projected LNG plant in Kitimat, and the Trans Mountain oil pipeline expansion from Alberta to Vancouver.”

The call to stop work on all three projects came from the UN Committee on the Elimination of Racial Discrimination, whose current membership includes China, Japan, Senegal, Turkey, Peru, Germany and Qatar.


@tomfletcherbc
tfletcher@blackpress.ca

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