By Jahangir Valiani
Published in The Hill Times
September 25, 2017
In two important decisions this summer, Canada’s highest court provided long-awaited clarity on the Crown’s duty to consult on energy projects that affect the rights of Indigenous peoples. This clarity is welcome, but it may not last long as the discussion of Indigenous rights now continues in the political arena. Meanwhile, another conversation is developing to improve the quality of life of Canada’s Indigenous people now, by implementing the lessons learned from successful Indigenous communities.
The two Supreme Court decisions looked at two different projects, both of which were approved by the National Energy Board. The first project was to explore for oil and gas in the Arctic, which would affect Inuit treaty rights to hunt and harvest marine mammals. The second project involved expansion and the reversal of flow of Enbridge’s Line 9 pipeline that runs through Chippewa of the Thames land. In both cases, the affected Indigenous communities did not consent to the project proceeding. In both instances, the government informed the affected Indigenous communities that it would rely solely on consultation performed by the NEB, and would not undertake further consultation.
Though the Supreme Court ruled differently in each case, the underlying principles were consistent. The court allowed the government to rely on the consultations performed by the NEB in certain circumstances. Further, the court did not adopt the end-point of consultation expounded by the United Nations Declaration on the Rights of Indigenous Peoples: that projects should only proceed once the affected Indigenous communities have provided their free, prior, informed consent (FPIC).
With the dismissal of a strict nation-to-nation consultation process, and the failure to adopt FPIC, it should come as no surprise that many Indigenous people are unhappy with the ruling and willing to take the fight for these rights from the legal sphere to the political arena.
But here’s the thing: rights alone don’t create opportunity for Indigenous youth. If we move outside the legal structures we can see examples of real collaboration and consent, based on an alignment of interests.
It is important to remember just how critical the pursuit of rights has been to Indigenous communities over the years. We shouldn’t forget landmark agreements that have been reached, such as the Nisga’a land claim agreement, the First Nations Land Management Act, and the creation of Nunavut. We have also seen stark improvements in the quality of life for specific First Nations communities, including the Fort McKay Nation and the T’licho communities, as the natural resources sector has consulted and included affected Indigenous communities in the development of projects.
Even with the focus on the rights conversation, too many Indigenous communities live in conditions they do not find acceptable. Clearly, this must change.
However, we can look at cases where Indigenous communities have improved their living standards. There are examples where partnerships between an Indigenous community and non-Indigenous business produce real wealth and well-being for Indigenous peoples. These businesses could be tourism, as in the case of the Osoyoos, retail and land development in the case of the Tsawwassen, or the development, transport, and extraction of natural resources, such as oil and gas in the case of the Cold Lake First Nations.
The best of these partnerships built self-sufficiency and self-reliance for the Indigenous communities involved. Indigenous employment is often central to these success stories, but building skills and capacity, as well as developing Indigenous businesses that serve the industry and the community, have more impact.
It is apparent that it is possible to align our economic interests so all Canadians share in a high standard of living and benefit from the development of Canada’s natural resources. That means having the right conversations—based on true partnerships—so Indigenous leaders can begin to manage wealth as opposed to poverty. Ensuring all parties understand the paths to form these successful partnerships will be the next task.
Jahangir Valiani is a policy analyst at the Canada West Foundation.