Conference on UN declaration has no easy answers for Wet'suwet'en, Coastal GasLink dispute
Credit to Author: Derrick Penner| Date: Wed, 15 Jan 2020 02:09:50 +0000
A business conference in Vancouver discussing implications of the UN Declaration on the Rights of Indigenous Peoples had no easy resolutions to the dispute of Wet’suwet’en hereditary leaders objecting to the Coastal GasLink pipeline crossing their territory.
Work halted in the region after a group of hereditary chiefs issued a symbolic eviction notice to contractors building the 670-kilometre pipeline, though the project has signed deals with the elected governments of all 20 First Nation communities on its route.
One lesson in the case, said legal expert Sandy Carpenter, is that the UN declaration “gives, potentially, more strength to hereditary leadership, and there are going to be, and are with Coastal GasLink, situations where there are disputes within a Nation about who can speak for the Nation.”
The dispute wasn’t directly on the agenda of The Declaration, Finding the Path conference on Tuesday at the convention centre, but it was an undercurrent to many of the event’s discussions, which highlighted the economic opportunities presented by initiatives to enact the UN declaration.
Carpenter, co-founder of the firm Canadian Regulatory and Indigenous Law, said the Coastal GasLink dispute has been percolating for five or six years and highlights the need for governments and resource developers to resolve disputes sooner rather than later.
“Where there is a recognition that there could be disputes (like this) on the horizon, you should deal with them early,” Carpenter said.
B.C.’s Bill 41, passed by the legislature in November, makes this province the first jurisdiction to enact the UN declaration, which creates a lot of work for government and First Nations to put the law into action, delegates heard.
However, even as it raises questions about how First Nations determine consent for projects under the legislation, Bill 41 will help create certainty for decisions on resource development arrived at under its objective of establishing shared decision-making.
Cheryl Casimer, a member of the political executive of the First Nation Summit, called Bill 41 another significant tool to be used to advance reconciliation with First Nations on a collective basis with government, but it must be led by First Nations.
“This is a discussion we have been waiting to have for too long,” Casimer said to the crowd of Indigenous leaders, legal experts and business people.
However, it’s important to remember that the UN declaration isn’t an economic treaty or resource agreement, said Merle Alexander, an Indigenous law expert and hereditary chief in the Kitasoo Xai’xais First Nation on the Central Coast. “It is a human rights treaty and I think it needs to be interpreted that way,” he said.
One principal of the UN declaration is that governments can’t approve resource development without the free, informed and prior consent of First Nations. In drawing up Bill 41 the provincial government determined that consent doesn’t amount to a First Nations’ veto over resource development.
In light of that, Alexander said governments need to invest more effort into building up alternative dispute-resolution methods to deal with cases where consent can’t be achieved through talks with First Nations.
“We have to take disputes out of the courts,” Alexander said.
And there are examples of how the consent can be achieved within First Nations, said Chad Day, president of the Tahltan Central Government.
Day, who spoke on another of the event’s panels, pointed to the shared-decision-making protocols that the Tahltan have been developing under a deal it reached with government in 2013 that has guided the First Nation through several impact and benefit deals with resource projects. It involves talking to and sharing information with 16 different Tahltan communities in B.C. and Yukon, and a process that leads to ratification votes within the Tahltan Nation.
“And everybody respects that,” Day said, “even people who don’t really like me or the government. They respect the fact we informed members properly and had that conversation over-and-over again. And if a vast majority of people support a project, then it is going forward with that certainty.”