There’s nothing like the United Nations putting its oar in to make the locals go loco in Alberta!

Indeed Canada’s human rights and environmental reputation is slipping. The SWAT attack on the Wet’suwet’en’s Unis’ot’en Camp was an outrage against Canadian law since the Wet’suwet’en have no treaty with the Crown and therefore have a legitimate (as determined by the SCoC in a number of recent decisions) sovereign claim to its traditional territory—and that means, under Canadian law, the two co-sovereigns (the Crown and the Wet’suwet’en) must consult with each other meaningfully about and before the disposition of resources in the territory—that is, decide how both will benefit fairly if a resource project is to proceed, and perhaps agree to arbitration if at impasse. This is Canadian law.

The UN might be referring to Canadian law, but it’s more probable that it’s referring to it own Declaration of the Rights of Indigenous Peoples (UNDRIP). The difference is that the concept of prior “consent” of indigenous nations is part of UNDRIP whereas “meaningful consultation” is part of Canadian law. The Crown does not need any First Nation’s consent to build, say, a pipeline through its territory—not if it’s treaty territory where FNs’ sovereign claims have been extinguished by treaty, and not in so-called ‘unceded’ territories where there are no treaties. But, in the latter category, the Crown MUST by law consult meaningfully with its co-sovereigns, interim to treaties being settled. And that means that even if the project is deemed in the national interest, any resulting disposition of jointly-owned resources, any royalties derived, must be shared in a way determined by consultation and agreement between the two co-sovereigns, interim to a treaty being settled between them (the article above appears to confuse “consent” with “meaningful consultation” by associating the latter with the UN instead of Canadian law).

Thus, the Site-C Dam is different from the gas pipeline proposal through Wet’suwet’en territory: the former is covered by treaty and no meaningful consultation is, strictly speaking, legally required in Canadian law, whereas the Wet’suwet’en case is in ‘unceded’ territory where it is required, interim to treaty.

The UN has an argument in both cases, but only as statement of the ideal. But it remains that the Crown did not consult meaningfully with the Wet’suwet’en before proceeding with the pipeline through their territory; when Wet’suwet’en people protested, the Crown sent in the SWAT team instead of stopping, doing the legally right thing and, maybe, proceeding if both parties come to some kind of agreement or have one adjudicated for them.

The gas pipeline company styles itself as some kind of arbiter for the Crown but this can’t be: it is a private interest and therefore is in conflict. Nevertheless, it argues it has permission to proceed from the tribal councils along the route, including of the Wet’suwet’en. However, tribal councils are creations of the Crown and, as such, are also in a conflict of interest when negotiating between the two co-sovereigns. The real Wet’suwet’en representatives are the elders of the nation. Ask most Wet’suwet’en people and they would agree. Further, all the FNs along the route might buy into the pipeline, but they can’t speak for the Wet’suwet’en. It is of course the nature of pipelines that no gaps can exist.

Finally, the BC government has just tabled legislation to make UNDRIP some kind of law in BC. This is a dodge since UBDRIP is not Canadian law, has no precedent or judicial opinion whatsoever, and is definitely superseded by our Constitution.

It’s time for the BC government to get serious and consult meaningfully with the real representatives of the FNs through whose territories it wants to develop resources. It may not substitute Crown proxies or private companies for itself, and must not impose one of its own creations (band councils operating under the strictures of the Indian Act) in the stead of the other co-sovereign (the Wet’suwet’en people), nor may it resort to UN declarations which have no legal bearing in Canada.

The UN’s ethical point, however, is not diminished by any of this, and is considered proper and laudable by a growing number of Canadians and others around the world.

“This is pretty much exactly, it must be noted, what other authoritarian governments like those in Hungary and Russia have said in similar recent circumstances.” Tell me again who is overreacting? DJC I think you’re being a little selective here. Actually this is pretty much exactly what China, India, Pakistan, USA, UK, Germany, the Marshall Islands, Quebec and virtually every other country in the world would say. It is (or was) a common diplomatic principle that only in extreme circumstances do governments criticize another country’s internal affairs.
How about this recommendation – the OHCHR “Urges the State party to freeze present and future approval of large-scale development projects affecting indigenous peoples that do not enjoy free, prior and informed consent from all indigenous peoples affected;” ok, this means the Canadian economy has to stop until consent is received “from all indigenous peoples affected;” This and most of the other statements in this report are undefined, vague, and poorly thought out. No country can pay more than cursory attention to them. I ask you, do you think there was much research done by this committee? Do you think the committee came out here to investigate? No, at most they took statements from unspecified people and maybe a little internet reading. Did they mention the Eagle Spirit Pipeline? Didn’t show up in their Google search I guess?
Why is the UN Committee on the Elimination of Racial Discrimination looking at this anyways? Are they (and maybe you) saying that these pipeline disputes are racial discrimination? You want to talk about the Rule of Law, well the rule of law says this is not discrimination this is a territorial dispute. Sure, the Canadian Indigenous people have historically been discriminated against by our generally white society and they don’t have the state apparatus backing them now either, but what we have here is no different than what the state has done trampling on many groups in the past. The state doesn’t discriminate so much as it subdues anyone who stands up to it, including Caucasian Trade Union workers.
The UN report specifically refers to “the reported violent arrest and detainment of a Secwepemc defender” – I suggest you hang around White Ave or any other bar district at closing time and you will see much more police violence irrespective of race than Kanahus Manuel and Isha Jules received in Oct 2019. Note they say “reported violent arrest” they clearly have based their rulings and decisions on hearsay.
The OHCHR “Recommends that the State party establish, in consultation with indigenous peoples, a legal and institutional framework to ensure adequate consultation with the view to obtain free, prior and informed consent regarding all legislation affecting indigenous peoples;” Another dream – how about the rest of Canadians? It would sure be nice if any of us received “adequate consultation” but that doesn’t happen in our democracy.
I don’t agree this is embarrassing – no one pays attention to UN committees – but DJC you are correct that our rights standards are not as good as we think they are, and never have been. We may be making progress though as we are all free to sleep under bridges now.