Consult? Yes. Accommodate? Maybe. But Veto? No

Recently a friend tagged me on a Facebook post entitled “Douglas Street Protest” going on in Victoria, B.C., much to his chagrin.

I immediately responded, “are they protesting Douglas Street or is the protest simply on Douglas Street?”” He responded Douglas Street was the location, I replied, “it is Victoria. It could really be either.”

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Later that day another friend looking to travel between Montreal and Toronto posted his annoyance of having to change his plans from the Via Rail to Porter Air thanks to a First Nations protest. This time the protest was halfway across the country near Belleville, Ont. 

My weekend then ended watching Evan Solomon on Power Play discussing scattered First Nations protests in response to pipeline construction. Not every First Nation mind you, however, a failure to establish total consensus of every First Nation on any potential pipeline route seems to raise the idea there is a veto for the project.

In 2001, when Gordon Campbell’s BC Liberal Party swept into power with 77 of 79 seats the question of how to respond to First Nations was dominant. For the most part, British Columbia First Nations do not have treaties and in 2001 somewhere around 110 per cent of provincial territory was under claim. Some far away Crown land, some, like the case of the British Columbia Legislative Assembly grounds, a little closer to the seat of power. 

Treaties with First Nations actually were a predominantly eastern thing and stopped at the Rocky Mountains. B.C. – prior to the Nisga’a Treaty signed May 11, 2000 – only really had the Douglas treaties on Vancouver Island – so maybe protesting Douglas isn’t so out there.

But then Campbell did something seemingly completely foreign to anyone who worked with his government. He held a referendum on whether or not B.C. should be involved in the treaty process. The province voted yes and Campbell tasked my former boss Attorney General Geoff Plant – also the minister responsible for treaty negotiations – to make it so.

Standing in the way of negotiations was the Taku River Tinglet (TRTFN) v. British Columbia case that eventually was elevated to the Supreme Court of Canada.

Known in my office as simply “Taku River” the case involved a road partially across TRTFN’s traditional territory to a mining development. The argument centred on whether the Crown fulfilled its duty to consult and accommodate the First Nation before allowing the road.

Part of the argument was not the road, but the environmental impact of the mining project so the road became a line in the sand. This is not dissimilar to ongoing pipeline discussions. Stop the pipeline or stop the Alberta oil industry and its impact on the broader environment.

The two lower courts had sided with the TRTFN and British Columbia sought and was granted leave to appeal to the Supreme Court of Canada. 

Never the one to wait in the corner, Campbell and his BC Liberal Government along with the federal government and various First Nations continued the treaty negotiation process. This included the Agreement in Principal (AIPs) process.

AIPs are the fourth step in the six-step treaty process and are publicly endorsed to guide all three levels of government – the First Nations, British Columbia and Canada. The treaty package outlined in AIPs includes land, money and resources and the overall cost is shared between the two senior levels of government – B.C., the land and Canada, the cash. 

The idea is not only to set a framework for the final stages of negotiation, but also to help the First Nations share in the regional economy. Often times industry gets involved and may work with a First Nation to gain access to a wood lot – for example – through helping with funding and building a First Nation owned and operated sawmill. 

First Nations want to preserve their natural territory. They also want to take part in the economic benefits that territory provides and need access to markets and cash to make that happen. This is about economic prosperity for all, not simply one group. 

On Nov. 18, 2004, greater clarity was given to this process through the Supreme Court decision in TRTFN v. British Columbia. The court found once traditional territory was established – which TRTFN had a very strong case – the Crown had a duty to consult and when necessary accommodate.

The first hurdle was whether or not the Crown had upheld its duty to consult. According to Justice Beverly McLachlin – whose last stop was the B.C. Court of Appeal so she knows the province’s issues intimately – that standard had been met.

The “province under the Environmental Assessment Act fulfilled its duty to consult and accommodate,” says the ruling. The justices go on to write, “the TRTFN was part of the project committee, participating fully in the environmental review process.  Its views were put before the decision makers, and the final project approval contained measures designed to address both its immediate and its long-term concerns.”

Despite the process, the province was unable to reach an agreement with the First Nation. However, it did not breach its obligation. Basically, to this point, the honour of the Crown was upheld.

The court then went on to say that when it comes to further provincial processes – permits, approval, licensing and development – “the Crown will continue to fulfill its honourable duty to consult and, if appropriate, accommodate the TRTFN.”

This is the key point: consultation? Yes. Accommodation? Maybe. But veto? No. The land we are talking about may well be eventual First Nations’ treaty land. For now it is Crown land under claim and therefore there are obligations to both sides. 

This is foreign to people from Central Canada. The treaties here are old and established. This is not building across treaty land; it is across land that is under claim. As such anything being conducted on the land base – a road to mine, a wood lot or a pipeline – must go through a rigorous process established by the Crown and in the crown’s honour. 

The process must include First Nations and if the standard has been met, there is an end point to consultation. Consultations cannot be in infinity, as such they would equate to a veto. The Supreme Court has been very clear in this regard.

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So the question isn’t whether or not a pipeline should be built, it is whether or not the Crown and its partners – including the First Nations – have adhered to the law. This is a duty of all levels of government to not only First Nations, but also Canadians as a whole and the very idea of “peace, order and good government.”

All of this is to say, if the standards have been met then build the pipeline. If not, do a better job.

Kelly Harris is Principal at Harris Public Affairs in Toronto. He served as in the B.C. Premier’s Office as a Communications Officer – press secretary and issues manager – assigned to the Attorney General and Minister Responsible for Treaty Negotiations. 

The views, opinions and positions expressed by all iPolitics columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of iPolitics.

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