On June 30, the Trudeau government quietly released its highly anticipated approach to revamping the federal environmental assessment process. Expectations were high following the recommendations of the government-appointed expert panel. Sadly, the Liberal government opted for the status quo over innovative change.
Nowhere is this more evident than in the proposed approach to indigenous peoples’ role in the process. Despite what appears to be some generous language (Indigenous peoples will continue to be “consulted” and their rights and interests “considered.”) and some tweaking at the margins, this essentially means business as usual.
The problem is that the status quo doesn’t work. Indigenous peoples legitimately expect more than mere consultation and consideration. When their rights and traditional territories are at stake, they expect to be decision-makers. Controversies over the Energy East, Northern Gateway and Trans Mountain pipelines, as well as many other major development projects across Canada, suggest ignoring indigenous claims for a greater say in the decision-making process can be costly. The resulting litigation process costs time and money, and ultimately contributes to the growing cynicism over Canada’s true commitment to political reconciliation with indigenous peoples.
In May 2016, Canada declared its full endorsement of the UN Declaration on the Rights of Indigenous Peoples, including the principle of indigenous free, prior and informed consent when projects affect their lands and communities. The Truth and Reconciliation Commission considers the UN declaration a cornerstone of reconciliation. Indigenous peoples rightly expect the government to follow through on its commitment to start taking the principle of indigenous consent seriously.
The proposed environmental assessment reform does mention the UN declaration, but it adopts a highly restrictive approach to consent. Resource-project proponents would only be required to “seek” indigenous consent through consultation, but not necessarily obtain it. The fear of a so-called “indigenous veto” motivates this convoluted approach to Canada’s international commitment.
We believe there is a better way. On the surface, achieving consent may indeed appear synonymous with granting a party veto power. But there’s a difference. A veto is when one party unilaterally rejects a project or policy. Consent, on the other hand, is achieved when parties mutually agree on a direction after a common deliberation process.
Our recent paper on the subject, published by the Institute for Research on Public Policy, calls for a two-pronged approach to implementing free, prior and informed consent in Canada. First, indigenous peoples should be recognized as full and equal governing partners in the decision-making process affecting their traditional lands. Second, communities should be able to express their consent through a mutually agreed upon impact assessment process that focuses on community concerns and is respectful of indigenous world views, and legal and political traditions.
The federal government could look at existing indigenous initiatives for inspiration. For example, the Squamish Nation in B.C. is shaping a new community-driven approach to impact assessment that focuses on indigenous rights and traditional land use. In 2014, they signed a deal with Woodfibre LNG that recognized the community’s own review process and decision-making authority on the project.
Ultimately, taking free, prior and informed consent seriously makes political and economic sense. It forces project proponents and regulatory agencies to be more responsive to the concerns of the local population, leading to projects that are more likely to be environmentally and socially sustainable. It can also foster locally grounded economic development in partnership with indigenous communities and help further the important national objective of advancing reconciliation.
Martin Papillon is an associate professor in the department of political science, Université de Montréal and Thierry Rodon is an associate professor in the political science department at Université Laval. They’re the authors of Indigenous Consent and Natural Resource Extraction: Foundations for a Made-in-Canada Approach, published by the Institute for Research on Public Policy (irpp.org).
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