Commentary: Resource Development and Indigenous Peoples – Finding the path to co-operation

The following is an edited portion of a speech given in Toronto in early September by Assembly of First Nations National Chief Shawn Atleo at a joint luncheon of the Law Society of Upper Canada and the Indigenous Bar Association. For the full speech, visit www.afn.ca.

Today, I want to challenge all of us to set aside some misconceptions and false choices. 

I’d like to set out for you a path of cooperation as opposed to conflict, and to envision a future of mutually supportive commitments to economic development and governance.

Some of you might already be saying to yourself, “Well, heard that before!”

But I am speaking about a major shift, a massive transformation – one that I believe is possible, even essential, and it does not require new ideas.

After all, this was the vision of our ancestors who entered into Treaty and other trade, economic and military alliances. Their vision is still instructive.

First, they understood, there was no difference between a rights agenda and an economic agenda. They would have rejected that false choice. They are the same agenda, obviously.

Second, they would have rejected the false choice between the environment versus economic development.

Our ancestors were committed to “sustainable development practices” that respect our traditions and our world view that includes all things living and non-living – long before that concept was articulated by non-aboriginal scientists.

Our agenda is, and always has been, unique.

It respects each Nation’s right to advance development agendas that accord with the community’s views and values. Environmental groups and industry have far too often rushed to impose their values and their views on our interests.

They too often show too little respect for our interests, which include fostering positive relations with our neighbours, feeding our families and offering hope and opportunity to our young people.

So here too we reject the attempt to impose this false choice on us.

Permit me to lay out a new path for you: a path that guards Indigenous economic interests, our rights, and our sacred commitment to the health of the planet. A plan that is confident in our ability to be major players, and one that is optimistic about creating hope and opportunity for our children and their children.

The Assembly of First Nations is committed to supporting our families and communities and new approaches to education and health. We help build capable governments and institutions. And we work hard to advance economic and environmental partnerships to address our communities’ needs, including our right to safety and wellness.

We believe it is the moral imperative of our leadership to fight for better education and to foster a better quality of life for our people who are too often the poorest of the poor in a rich country built on our traditional homelands.

There is a compelling economic and political argument for action. If we can close the gaps in employment and education we can add $300 billion to Canada’s economy, and save another $115 billion in public expenditures that result from First Nation poverty.

And now, more and more, we are seeing strong legal reasons to bring First Nations fully into the economic livelihood of this country. Whether it is logging in Grassy Narrows territory in northwestern Ontario, Nuu-chah-nulth fisheries in my home community at Ahousaht, or the recent decisions in Bastien and Dube that speak to our right to participate in the commercial mainstream – more and more we are seeing our rights upheld and affirmed, accompanied by a clear directive for industry and government to work with us.

The government estimates that there will be $400 billion of resource-based economic activity in Canada in the coming years. Much of this will take place on or involve the traditional territories of First Nations.

This – along with our young and growing population, Canada’s future workforce – make us major players in the economy now and in the future. We have much to gain by working together and a lot to lose if we don’t, because those projects can not and will not take place without our agreement, without our involvement and without our active engagement from start to finish.

Let me cite two examples of how not to do it, how the old way inevitably leads to misunderstanding and confrontation, wasted time and wasted money on all sides, and, ultimately, the death of sensible economic development partnerships that could have brought benefit to all.

The first is the Keystone XL pipeline. Confrontation was created through inadequate consultation, a failure to listen, and insensitivity to our rights and culture. The problem with this project and many others is that, to this point, the effort required to address concerns simply hasn’t been there. Massive development projects like this one typically have a planning process that spans decades. Despite this, too often First Nations are never considered in the planning. There seems to be a sense that at the late, last stages our consent can be sought or bought. This does not work. We are forced to react and to fight to protect our interests.

Then there is the case of Taseko Mines’ Prosperity mine development in the Tsilhqot’in territories in my home province of B.C. Incredibly, an enormous mining project was prepared with no interaction with the First Nations communities on whose land it was going to be built, a territory that had deep spiritual meaning to the people and also provided them with food and a way of life. The mine would have poisoned a pristine environment that supported these communities for centuries.  

Years of planning by government and the private sector ignored these peoples, peoples with an intimate knowledge of every aspect of the territory, peoples who had fought the Tsilhqot’in wars over a century ago defending their way of life and their lands. It’s quite incredible to imagine that this is still happening in the twenty-first century in Canada.

The Tsilhqot’in did participate later in the environmental assessment process and everyone from the very, very elderly to small pre-school children spoke about their sacred lake and their concerns.

This led to a scathing environmental assessment. The federal environment minister at the time, Jim Prentice, called it one of the most severely critical he had ever seen. We supported the local leadership in demanding that the Canadian government stop the project. And it did. It was a difficult decision for the government in these challenging economic times and in the face of immense pressure from industry and the provincial and municipal governments.

Now, only a few months later, a “revised” proposal (“New Prosperity”) has again come forward seeking government approval. Again, there has been no direct engagement, no discussion or negotiation with the Tsilhqot’in – so, of course, again there is immediate resistance and an apparent path of conflict ahead. This pattern is absolutely absurd and will never produce mutual benefit.

There is another path. The United Nations Declaration on the Rights of Indigenous Peoples compels both states and Indigenous peoples to work together in mutual partnership and respect. It also sets out the standard of free, prior and informed consent. 

Canada and other states have said they want to constrict this standard – saying that it is an impossible threshold, too close to a “veto” and therefore unacceptable. Again, I ask you to set aside these misconceptions.

Free, prior and informed consent can work. It is clearly established in international human rights standards. The right of Indigenous peoples to approve or reject activities that affect their rights is a fundamental element of self-determination. It is also an important safeguard for other Indigenous rights by ensuring we are included in the development and decision-making process.

It is clear that
we have work to do in creating understanding of this standard. At the Commission on Sustainable Development’s Working Group on Mining, the delegations from Canada, Australia, New Zealand and the U.S. asked for the removal of “free, prior and informed consent” regarding Indigenous and local communities.

Yet as you know, in the 2004 Haida Nation decision, the Supreme Court of Canada ruled that the nature and scope of the Crown’s Duty to consult would require “the full consent of [the] aboriginal nation … on very serious issues.”  The Canadian government has not addressed this criterion of “consent” and instead has worked to narrow the definition of “very serious issues.” 

Canada’s “Updated Guidelines for Federal Officials to Fulfill the Duty to Consult,” released last March, does not address the right of Indigenous peoples to free, prior and informed consent, except to note Canada’s concern about such consent being “interpreted as a veto.”

Canada’s Guidelines also state that the UN Declaration “does not alter the legal duty to consult” in Canada, yet the Supreme Court of Canada has ruled repeatedly that declarations and other international instruments are “relevant and persuasive sources for interpretation” of human rights in the domestic context.

This approach of denying or minimizing our rights is both misinformed and, frankly, dangerous. All governments have a clear role to play in ensuring sustainable resource development including respect for fundamental human rights which include international indigenous human rights standards. We have a clear right to determine the course and shape of development in our territories and to benefit from development activities in our lands.

The courts have been clear, the precedents in human rights law are clear, the common sense test of what is meant by “consent” is clear. We need to move down the path that these tests dictate. It is time to bring Canadian law in line with the international instruments and case law recognizing indigenous land rights and jurisdiction. We must not slide down the old slippery slope towards new conflicts. We must march forward on a new path.

This new path provides an avenue for developing mutual understanding. It requires us to work with federal and provincial governments to review and revamp regulatory systems.  It is a useful and appropriate tool for defining and regulating contractual relationships. It can guide resource development projects to ensure an open, ongoing and equitable relationship between business, First Nations and government parties. The right to consent, and the freedom to withhold it, can represent the start of discussions and a powerful means to build the confidence of First Nations and to create successful, mutually beneficial projects.

Put simply, it is about building relationships; it is about respect, and it requires discussion early and discussion often. And clearly, it just makes sense.

…

Experience has shown that getting past conflict requires bridge building, mutual respect and, often, putting deposits in a joint ‘trust’ account to build opportunity and success. We must commit to the effort required to turn around the situation for the Tsilhqotin and others.

We must not stoke the fires of conflict and division but light the fires of peace and friendship. We need to engage in dialogue about economic potential in our territories and the potential to yield benefit for all of the surrounding communities.

Following this new path will affirm and strengthen First Nations, reduce conflict, and allow us to build a stronger, more prosperous, fair and just country for all the citizens of this land. The year ahead could be a milestone in the rebirth and resurgence of our economies. We can and we will become the new drivers of Canada’s economy, one built on the foundation of our rights, title and jurisdiction. And we invite those who embrace the values of foresight and fairness to travel with us.