Four years ago, the Truth and Reconciliation Commission called on all levels of government in Canada to fully implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
With the introduction of Bill 41, the “Declaration on the Rights of Indigenous Peoples Act,” British Columbia has become the first province to begin this process. The Bill requires two more readings in the Legislature before it becomes law.
While many questions remain about how Bill 41 will work in practice, it has been welcomed by key Indigenous leaders, and widely condemned by the corporate sector.
The Bill was drafted by the NDP-led government, in close consultation with the BC Assembly of First Nations, Union of BC Indian Chiefs, and the First Nations Summit, which together represent almost all First Nations in the province.
Premier John Horgan told the legislature that “I’m determined to walk a path of reconciliation. We can have a better future than our past.”
But his government has a mixed record at best. One of his actions on taking office two years ago was to give final approval for the Site C dam, which will flood over 100 km of river valley, Indigenous territory and agricultural land in northern British Columbia. The move sparked deep public anger, since the project is widely regarded as a violation of treaty rights and a form of support for the energy industry.
If Bill 41 had been in place in 2017, it would have strengthened the hand of Indigenous groups which continue to resist Site C. The UNDRIP articles call on governments to engage with Indigenous nations, communities and cultures in ways which help to preserve, not weaken, their traditional territories and ways of life.
Bill 41 “has the capacity to be transformative,” according to Merle Alexander, legal counsel for the BC Assembly of First Nations and hereditary chief of Kitasoo Xai’xais First Nation. Alexander, who helped write the legislation, told the widely respected Narwhal news site that the challenge will be to create a new “baseline,” radically shifting relationships between governments and First Nations, which regularly find themselves waging legal battles after projects are approved and major impacts to land and traditional practices can no longer be prevented.
Much of the bitter corporate antagonism against Bill 41 is about whether the “free, prior and informed consent” required by UNDRIP grants Indigenous peoples an effective power to veto projects that affect traditional territories.
Indigenous leaders reject this framing of the issue.
“Nowhere in the act, nowhere in the declaration, do the words ‘veto’ ever come up. For the first part, it’s fear-mongering,” Alexander told The Narwhal.
Article 32 of UNDRIP recognizes Indigenous peoples’ “right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.” It also says governments “shall consult and cooperate in good faith” with Indigenous peoples through their own representative institutions, in order to obtain their free and informed consent prior to the approval of “any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”
Alexander said “Veto is about overriding jurisdiction and overruling governments, whereas consent is about agreement and coming together and working through problems and finding solutions. In some ways consent and veto are polar opposites to each other.”
Speaking from the legislature floor, Terry Teegee, regional chief of the BC Assembly of First Nations, addressed the fearmonging directly.
“To bring this to a hard point, some people will oppose this law because of their fears of what an era of mutual consent means. There is fear in the idea of sharing power and jurisdiction. I want to say strongly and clearly here this declaration law is not about providing any government with veto rights. Consent is about agreement. It is a process to achieving and maintaining agreement … about respecting our laws as equals and as partners…. most simply put, it’s about coming together as governments, as people seeking to find common ground.”
Teegee’s comments also reflect the reality that First Nations in British Columbia do not have a unanimous approach to resource development. From his perspective, “Laws that are co-developed … will deliver economic, legal certainty and predictability…”
This means greater power to prevent plans to turn a sacred lake in Tsilhqot’in territory into a tailings pond for a mine, or to construct the Coastal GasLink pipeline on traditional Wet’suwet’en territory.
But while simultaneously seeking to guarantee the right to fish, hunt and practice their traditional ways of life in perpetuity, the legislation also intends to strengthen the ability to demand larger economic benefits for Indigenous peoples.
Some major questions are far from fully answered by Bill 41. For one thing, this is provincial legislation, in a country where the federal government wields significant power over matters such as environmental approval processes. When she was still Justin Trudeau’s Minister of Justice, Jody Wilson-Raybould instructed federal lawyers to pursue reconciliation in their engagements with Indigenous litigation, a move which was popular among First Nations. But such instructions could be changed by any federal government.
And while John Horgan’s government has made serious mistakes, it has at least taken this issue seriously. But future provincial governments in British Columbia could have very different attitudes towards implementing UNDRIP.
To give another example, the Indian Act is federal legislation which has historically been used to provide false cover for totally inadequate consultation processes, or to pit one Indigenous group against another.
For many Indigenous leaders and activists, the first real test will be the forestry industry, which operates mainly on unsurrendered Indigenous territories (“crown land”) with little regard for the interests of First Nations. Tensions in forestry-based communities have grown as timber supplies dwindle, creating pressures to allow more widespread harvesting despite the lack of treaties across much of the province.
All this means that more legal actions and grassroots struggles against resource extraction and export policies will continue, even as a different path is put forward in Bill 41.
“To the extent that Bill 41 gives more rights to Indigenous peoples to resist corporate destruction of their lands and waters, we welcome this legislation,” says Communist Party of BC leader George Gidora. “People and nature must have priority over private profits. Decades of grassroots and legal struggles by Indigenous peoples, environmentalists, and progressive working people have helped to make this step forward possible. Communists in our province will continue to extend full solidarity to the campaigns against Site C, the Trans Mountain pipeline expansion, and other destructive corporate projects.”
