PECKFORD -- The BC legislature passed a law, harmonizing the UN Declaration with BC Law, in November 2019 ... this would now likely conflict with existing Canadian law regarding consent

Signing of the 1982 Constitution Act

The 1982 Constitution Act, Section 35, established the ground work for modern day interpretation of Aboriginal Rights and Title on non treaty land, much of which is in British Columbia.

Flowing from this Section 35 various Aboriginal groups went to court to determine its meaning. Several important Supreme Court of Canada (SCoC) decisions interpreted the section to mean that any new development on land claimed by aboriginal groups as their traditional territory required meaningful consultation and accommodation with the aboriginal group.

Hence, any proponent wanting to conduct any type of development on the traditional land must first sit down with the aboriginal group in question, meaningfully consult with them and accommodate as far as possible their concerns.

This often led to agreements between the parties that provided employment and other benefits flowing out of the agreements to the aboriginal group.

By 2014 the evolution of the meaning of Section 35 had reached the stage where not only rights of Aboriginal people came into play, and mandatory consultation and accommodation, but the question of title of the traditional land.

The Tsilqot’in aboriginal group of British Columbia went to court in 2014 and the Supreme Court, for the first time, awarded title of land to the Tsilqot’in people.

Here are the Court’s words:

‘Aboriginal title confers the right to use and control the land and to reap the benefits flowing from it.

Where title is asserted, but has not yet been established, s. 35 of the Constitution Act, 1982 requires the Crown to consult with the group asserting title and, if appropriate, accommodate its interests.

Once Aboriginal title is established, s. 35 of the Constitution Act, 1982 permits incursions on it only with the consent of the Aboriginal group

or if they are justified by a compelling and substantial public purpose and are not inconsistent with the Crown’s fiduciary duty to the Aboriginal group;’

To this point no other Aboriginal group has been awarded title to land under Section 35 in Canada.

Note: Consent of Aboriginal group who have title but ——— it can be overridden

Today the Wet’suwet’en aboriginal group are claiming they must consent to development on their land, (that development being) a pipeline. But the Wet’suwet’en do not have title under Canadian Law.

So, what was necessary, under Canadian Law, was for consultation and accommodation by the pipeline proponent; all of which has been done and agreements signed with representatives of the aboriginal people.

Consent was not necessary. The fly in the ointment?

The United Nations Declaration on the Rights of Aboriginal Peoples (UNDRIP) passed by the General Assembly in 2007, of which there is Article 19:

‘States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent be- fore adopting and implementing legislative or administrative measures that may affect them.’

Canada’s House of Commons passed a bill C-262 (Third reading on May 30, 2018) in having Canada’s laws harmonize with the UN Declaration. The Senate has considered it, and a Senate Committee report was made to full Senate, but the Senate has not approved it.

It died on the order paper of the Senate last year. So, my understanding is that it is not the law of Canada as we speak.

But the BC legislature passed a law, harmonizing the UN Declaration with BC Law, in November 2109. This would now likely conflict with existing Canadian law regarding consent. My understanding is that legally Canadian Law would override BC law.

So interesting isn’t it? Canadian Law says one thing; consent with an over ride. The UN Declaration says another; consent, no over ride.

 

Former Newfoundland and Labrador Premier,
and political commentator,  Brian Peckford

As I said before, the behaviour of our governments, lead one to believe that the United Nations Declaration is taking precedence (even though not Canadian Law) over our own developing Canadian law -- as defined by the Supreme Court of Canada -- on this issue.

In 1972, Brian Peckford was first elected, as a Progressive Conservative, to the Newfoundland Labrador House of Assembly -- he became Premier at the age of 36, holding the leadership of his party and government from 1979 to 1989.

Since leaving politics, early in 1989, Peckford has conducted public inquires for the governments of British Columbia and Canada, has served on numerous Boards including the CBC, and has been active in public affairs. 

Since 1993, he and his wife Carol have made British Columbia their home; they now live in Parksville, on Vancouver Island. He blogs at Peckford 42.