Resource World Magazine

36 www.resourceworld.com a u g u s t / s e p t e m b e r 2 0 1 6 I n May 2016, the Canadian Government attended the Permanent Forum on Indigenous Issues to announce Canada's decision to drop the qualifications to the Declaration of the Rights of Indigenous Peoples (UNDRIP). Some in the mineral and mining investment community worry the endorsement of UNDRIP will spark a legal onslaught as Indigenous groups rush to the courts to secure the practical implementa- tion of UNDRIP rights, and in particular, Article 32, which many believe gives indig- enous people a veto over development on their lands and traditional territories. UNDRIP is a substantial document, with 46 articles ranging from the much debated requirement for "free, prior and informed consent" on resource development to com- mitments to support Indigenous language retention and education. The declara- tion recognizes Indigenous Peoples' basic human rights, as well as rights to self- determination, equality and land, among others. "Put simply," says Ken Coates, Senior Fellow with the Macdonald-Laurier Institute, "UNDRIP is not an Indigenous declaration of independence. In many cases – such as influence over resource development – existing modern treaties and the "duty to consult and accommo- date" requirements established by the Supreme Court likely already provide Indigenous peoples with the kind of authority envisaged under the Declaration. According to Tom Issac, in the Canadian Bar Association National Magazine article, the Calgary-based head of aboriginal law practice at Osler, Hoskins & Harcourt LLP says, "UNDRIP does not constitute a veto but it does talk about consent. So it's some- thing of a semantic game, but whether it's a veto or consent, it has the same net effect. And giving 600-plus groups a veto over developments would be a fundamen- tal shift in how we govern ourselves." Others argue that International law can only be brought in through domestic law – the federal government would have to write the veto into the Constitution and this would require provincial support and this is not going to happen. The Trudeau government hasn't said how it plans to approach "implement- ing" UNDRIP; a statement issued by the office of Indigenous and Northern Affairs Minister, Carolyn Bennett, suggests it will be "working in consultation with Indigenous groups and various stakehold- ers on an approach to the implementation of the Declaration." Vague as it is, it's not at all clear that UNDRIP actually offers Aboriginal Canadians more clout than they wield now. The duty to consult, when combined with an aboriginal community's effective control of the land it occupies, can amount to a virtual veto over how the land is used. "Canada believes its constitutional obli- gations serve to fulfil all of the principles of the declaration, including free, prior and informed consent," Minister of indig- enous and Northern Affairs, Bennett, said in a recent speech. But already adoption of UNDRIP is being pointed to help First Nations fight against the Energy East Pipeline, accord- ing to some New Brunswick Aboriginal leaders. Ron Tremblay, Grand Chief of the Wolastoq Grand Council, believes the dec- laration will give Aboriginal communities veto power over contentious resource proj- ects including the pipeline, which would transport crude oil from Alberta to New Brunswick. "I'm very confident that by the Liberal federal government supporting the decla- ration ... that we will have the opportunity to say no," said Tremblay. Darrell Paul, Executive Director of the Union of New Brunswick Indians, agrees that support for the UN declaration will bolster First Nations' ability to say no to resource projects. "I think it will help a great deal, it will support the position that Aboriginal title does exist in New Brunswick," said Paul. If the government follows through on its plan to enforce the UN declaration through law, it's clear that Indigenous communities would have the power to halt resource projects, according to Larry Chartrand, law professor at the University of Ottawa. "If they don't want to go along with the project at the end of the day they can say no and that's the equivalent of a veto," said Chartrand in a recent Globe and Mail article. "The Constitution includes a duty to consult Aboriginal Peoples, but it doesn't go as far as a duty for consent. Enacting the UN document would ultimately give more power to Indigenous Peoples on development decisions," said Chartrand. While it may take some time for the impact Section 32 of the UNDRIP to be fully understood, the Canadian explora- tion and mining industry has been at the forefront of engagement, consultation and accommodation (Section 35 of the Canadian Constitution) for many years now, and most realize that without the sup- port of local communities and Indigenous people, the chances of permitting a project are substantially reduced. In effect, some form of community and Indigenous veto of mining projects has existed for years. n Canadian Government commits to implementing United Nations Declaration of the Rights of Indigenous Peoples Does "free, prior anD informeD consent" imply aboriginal veto over inDustrial Development? by Robert Simpson

• Cover