Comment: There should be no confusion about aboriginal consent

As federal and provincial governments contemplate decisions regarding major pipeline projects, the public debate is increasingly around one issue: Is First Nations consent required?

Consent was thrust into the spotlight by the unqualified endorsement of the United Nations Declaration on the Rights of Indigenous Peoples by the Trudeau government in May. The standard of free, prior and informed consent of indigenous peoples for use of lands and resources appears in multiple articles of the declaration.

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Since the Trudeau government’s endorsement, there has been growing questioning about the federal intentions regarding consent. The issue appears poised to dominate the next B.C. election as the NDP has pledged to endorse and adopt the declaration.

Unfortunately, the public debate about consent been confused and conflicted. Consent is at once demonized as an economic threat to be feared, embraced as illustrating a commitment to social justice and advanced as a basic right.

As long as the confusion lasts, the future more likely holds episodes like that of Standing Rock in North Dakota than relative success stories like that of the Great Bear Rainforest.

We need to shift the dialogue.

Three basic understandings must inform our public discourse about consent.

First, consent is already an established standard of Canadian law. The declaration is not the only, or main, reason we must address it. The Supreme Court has confirmed consent is part of the framework of aboriginal title and rights protected in Section 35 of the constitution. In Tsilhqot’in Nation vs. B.C., the court affirms consent multiple times as the standard for use of lands and resources subject to aboriginal title. This wasn’t new; it had been present in older decisions.

Consent is part of Canadian law. We need to stop pretending it is new. We should have long ago started talking about how to implement it.

Second, our economy cannot afford delay in sorting out what consent means and how to implement. In the Tsilhqot’in Nation case, the court clarified that every time lands and resources are approved for use by the government without consent, massive risk and uncertainty is created that those projects will have to be cancelled in the future and that compensation will have to paid to First Nations.

This reflects the basic fact that aboriginal title isn’t some abstract legal concept — it is a real interest in the land that entitles the aboriginal group to the full economic benefit of the land and resources.

Simply stated, aboriginal title’s relationship to the economy is like a building storm — every time we use lands and resources without consent, the storm strengthens and increases in force.

As in real life, you never simply ignore the storm. If you do, the consequences are massive, perhaps irreversible. The smartest course is to take action to mitigate exposure and damage. Consent is the clear, legally endorsed path to facing the building storm of aboriginal title. Rather then being feared, consent should be embraced and aggressively implemented, as the  solution to a basic common challenge.

Third, in Canada we have extensive experience of distinct governments — with distinct authorities, jurisdictions, responsibilities and laws — having to structure how to align and harmonize their respective decisions for matters to move forward.

While different language is used, this is intrinsic to the operative model of constitutional relations between federal and provincial governments that is the functional reality on many matters in Canada.

What is different now is that it is First Nations governments with which alignment and harmony need to be achieved. Our struggle with this says more about our society’s need to come to terms with Canada’s colonial past, lingering racism and need to achieve recognition and reconciliation, than the idea that consent is something unfamiliar to be feared.

What these points illustrate is that we are having the wrong conversation. We should not be debating whether consent is relevant or necessary. Rather, we should be focused on how we implement it collaboratively and constructively. Implementing consent will require a host of mechanisms — agreements, policies, laws, protocols and new structures and processes.

We should get on with the work of building those, rather then endless, and ultimately obsolete, political debates.

Roshan Danesh works with First Nations on nation-building, constitutional, legal, and dispute-resolution issues.

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