Will UNDRIP hurt resource development?

"UNDRIP does not just provide Indigenous peoples with the right to say no to development; it also supports our right to say yes." National Council of Chiefs tells Prime Minister.

The National Council of Chiefs put a significant question to Prime Minister Justin Trudeau: Will Ottawa’s UNDRIP bill get in the way of natural-resource development?

In a letter, the chiefs reminded the PM why the council was founded — to "communicate the positive side of resource development while advocating for policies that pave the way for more Indigenous involvement in the industry, as employees, contractors, partners and owners."

Council President Dale Swampy continued: "While the affirmation of Indigenous rights is always welcome, there are implications to this legislation, as currently drafted, that is likely to have negative impacts on the many Indigenous communities that rely on resource development as a source of jobs, business contracts and own source revenues. I do not want to see symbolic gestures of reconciliation come at the expense of food on the table for Indigenous peoples."

And then came the cruncher: "However well-intentioned C-15 is, in my discussions with legal experts, industry representatives and investment bankers, introducing another layer of uncertainty and risk to development in Indigenous territories...

"This is because it provides no clarity on who can provide or deny consent on behalf of Indigenous nations – be it Chief and Council, hereditary Chiefs, or small groups of activists; and implies that a single nation can deny consent – a veto in practice if not in name – on large linear projects such as a pipeline, railroad or electric transmission line."

Of course, that recalls the still-unresolved issues and chaos around First Nations support for the construction of the Coastal GasLink pipeline across northern BC. It will feed natural gas to LNG Canada’s processing and LNG export terminal at Kitimat BC.

The elected councils of 20 Nations along the pipeline route have approved the pipeline and have benefit agreements with Coastal GasLink. Those 20 include the elected council of the Wet’suwet’en Nation, which says a large majority of the Nation’s members support the pipeline.

Enter a group of eight (out of a total of 13) Wet’suwet’en hereditary chiefs. The group of eight men claimed exclusive jurisdiction over unceded Wet’suwet’en territory and said they thus had sole authority to approve or reject the pipeline — and they do not approve.

The claim was accompanied by protests and demonstrations of "support for the Wet’suwet-en" — and blockades of rail lines and roads — that were staged as far away as England.

Some female hereditary chiefs (and one male hereditary chief) spoke in favour of the line, and the group of eight males then declared the women to be no longer hereditary chiefs. The women promptly replied that the men had no jurisdiction or right to strip them of hereditary titles.

Enter the federal and BC governments, which in May 2020 began discussions with the group of eight hereditary chiefs, and signed an MOU.

The group of eight hereditary chiefs now say they seek this:

"(An) Affirmation Agreement, affirming what Canada and British Columbia agreed to in the May 14th MOU, namely:

  • "that Wet’suwet’en rights and title are held by the Wet’suwet’en Houses under our system of governance (Anuk Nu’at’en)
  • "that Canada and BC recognize aboriginal rights and title throughout the yintah (territory)."

And, they add:

"Wet’suwet’en is seeking BC’s commitment to:

  • "preserve in the Affirmation Agreement the Wet’suwet’en aboriginal title in land on an interim basis until the specific application and geographic scope of the Wet’suwet’en Aboriginal title is addressed in the Implementation Agreements.
  • "put in place in the Affirmation Agreement various measures to implement Wet’suwet’en aboriginal title and rights on an interim basis until jurisdictional arrangements are addressed under the Implementation Agreements.”

Though much slowed, in part because of COVID-19, the talks are proceeding. The Coastal GasLink pipeline won't be covered in any affirmation agreement, but work continues — and so do the tensions

The issue of governance, of who speaks for the Nation, is also on the table and yet to be settled.

Which is why Dale Swampy told the prime minister:

"I know, and have experienced, that there are activist groups that will use any legal tool they can to stop any kind of resource development, be it forestry, hydro, mining or oil and gas, and I fully anticipate that C-15 will be used as a tool not to protect Indigenous rights as intended, but to use Indigenous rights as a pretext to delay or stop development.

"This sort of 'hijacking' of Indigenous rights for other purposes creates conflict and long-lasting divisions within our communities and in the broader Canadian society. Ambiguity in the law creates conflict and hampers the development of our economy."

And he added: "I want to close by reminding you that UNDRIP does not just provide Indigenous peoples with the right to say no to development; it also supports our right to say yes."

Prime Minister Trudeau responded in part: "Our government sees the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as a vehicle that will bring greater clarity and capacity to enhance the ability of Indigenous Peoples to participate in and benefit from economic development opportunities."

But he didn’t explain how it would do that, thus leaving open the issue raised by the National Council of Chiefs:

"We have been handicapped by the Indian Act, and by the extra layers of federal bureaucracy that complicates and impedes all land development on reserves, for more than a century. And our people are poorer for that. So I ask you to work on removing barriers to Indigenous economic development, not adding to them."

The chiefs asked for two things:

  1. "Delay the bill until after the COVID crisis. The NCC Chiefs, like all Indigenous leaders, are unable to travel to Ottawa now to speak directly with our representatives of Parliament. Of all federal legislation this one especially requires direct consultation regarding our concerns and aspirations.
  2. "Please provide more detailed information regarding the three-year action plan outlined in the bill. We need this to make an informed assessment on the likely outcomes and consequences of the legislation. We would have preferred that the three-year development of the action plan preceded any UNDRIP legislation."

Dale Swampy is a member of the Samson Cree Nation in Maskwacis, Alberta, and former CEO with the Samson Cree Nation.

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