Vaughn Palmer: MLA and Haisla leader poses questions on UNDRIP
Credit to Author: Massey Padgham| Date: Tue, 05 Nov 2019 03:24:00 +0000
VICTORIA — B.C. legislature proceedings gained a touch of Latin one day last week when NDP, Green and B.C. Liberal members all voted for the government’s UNDRIP legislation.
“Nemine contradicente,” declared acting clerk Kate Ryan-Lloyd, giving the traditional acknowledgment that a measure has passed unanimously, “without dissent.”
The occasion was second reading — approval in principle — of the legislation to begin enshrining the UN Declaration on the Rights of Indigenous Peoples into provincial law and policy.
Approval came Thursday, after just two days of debate that was unusually respectful and orderly for the oft-contentious chamber.
“In my two-plus years in the House, I think this is the smallest amount of back and forth during debates I have heard,” said Peter Milobar, the first term B.C. Liberal MLA from Kamloops–North Thompson. “I think that speaks volumes to how seriously everyone does take the bill in front of us.”
Hansard recorded only one significant departure from decorum, heckling by one of the New Democrats during a speech by Ellis Ross, B.C. Liberal MLA for Skeena.
Ross spoke for well over an hour, drawing on his experience as a leader of the Haisla First Nation and in helping develop the LNG industry based in Kitimat.
He also ventured into controversy, questioning the meaning of the UN declaration’s guarantee of “free, prior and informed consent” to First Nations over land and resource development within their traditional territories.
“I just tried to read an 87-page document on consent,” Ross complained at one point. “It’s 87 pages on one word, but it didn’t define consent. It was written by a lawyer. Now I’m going to have to get another lawyer to explain (it) to me.”
An hour earlier in the same debate, Green MLA Adam Olsen, who is also of Indigenous ancestry, had scorned questioning along those lines.
“There will be those that fearmonger,” said Olsen, a member of the Tsartlip First Nation. “Some may even stand in this place and make ridiculous statements. They’ll ask absurd questions like, “What is free, prior and informed consent?” pretending that they’re actually seeking truth and reconciliation.”
But Ross wasn’t inclined to give ground. He pressed for a more specific definition of consent at great length.
“One of the definitions I heard of consent, said that if the two parties don’t agree, then in absence of alignment there is no agreement. So therefore, there is no decision,” he said. “Isn’t that a form of veto? No decision from the Crown will be made unless agreement was made by both parties.”
Elsewhere in the same speech, he posed hypothetical questions:
• “If there are two parties at the table, First Nations and the Crown, and the First Nation doesn’t agree, what happens? … Does the Crown still go ahead and make their decision based on the interests of B.C. as a whole? Or do they just withhold their decision? Making no decision is still a decision.
• “Can somebody tell me what happens when the Crown is at the table with three or four different First Nations, and three First Nations agree but one doesn’t? Does the Crown withhold its decision? If that’s not a veto, I’d like some explanation on what that is.”
The New Democrats are reluctant to be drawn into answering such questions, even though there are actual examples already at play here in B.C.
But at one point Wednesday, Scott Fraser, the minister of Indigenous relations and reconciliation, conceded that there might be cases where government would have to proceed in the absence of consent.
“The UN declaration does not contain the word veto nor does this legislation contemplate or create a veto,” he told the house. “This legislation does not limit the right of government to make decisions in the public interest.
“But the province is expected to consult and cooperate in good faith when considering decisions that may affect Indigenous peoples,” Fraser continued. “If government has met this condition, there may be occasions when a disputed project goes forward, and there may be occasions where a project does not go forward. Every project is unique.”
Ross expressed confidence in the government’s ability to eventually work it out.
But in the interim, “if it means inaction in terms of decision-making coming from the Crown, this is going to affect a lot of people that depend on the decisions so they can go mining, so they can go with their forestry careers, so they can continue with LNG operations. And I’m talking about First Nations, as well. So this matters.”
Having shown that there was nothing absurd about seeking a more precise definition of consent, Ross turned to the insinuation that he was merely trying to spread fear.
“To say that I’m here trying to fearmonger or undermine this? No, I’m not. I’m trying to get clarity. That’s what I’m trying to do. There’s a lot riding on this.”
Still, Ross joined about three dozen of his B.C. Liberal colleagues in voting to approve the legislation in principle.
The Liberals confirmed that three other MLAs, Mike Bernier (Peace River South), John Martin (Chilliwack) and Laurie Throness (Chilliwack—Kent) avoided the vote because they had outstanding questions about the legislation.
Though the bill is a brief one, it is also more vague and suggestive than specific. The next opportunity to ask questions will be in the clause by clause stage of debate, after the fall sitting resumes on Nov. 18.