Canada could face ’20 Standing Rocks,’ says Mohawk chief as Ottawa rejects need for ‘consent’

Canada could face “20 Standing Rocks,” said a Mohawk chief in response to the Justin Trudeau government’s revelation Thursday it doesn’t plan to include consent as part of its consultation approach with First Nations on major resource projects.

Natural Resources Minister Jim Carr told reporters Thursday the Trudeau government believes it only needs to accommodate and consult First Nations before proceeding with major resource development projects and not obtain “free prior and informed consent.”

It’s a position at odds with Supreme Court of Canada rulings which have stated that obtaining consent is part of the consultation spectrum the Crown faces when dealing with First Nations on issues that impact rights, title and territory. The position also undercuts a key element of the UN Declaration on the Rights of Indigenous Peoples which the Trudeau government has claimed it plans to embrace as part of its efforts toward reconciliation.

Kanesatake Grand Chief Serge Simon said he’s not surprised the Trudeau government says it does not believe it needs to obtain consent to proceed with major projects that impact Indigenous territories.

“New infrastructure to bring in more oil from the tar sands? Forget it, it’s not going to happen,” said Simon, who is grand chief for the Mohawk community at the centre of the 1990 Oka crisis. “I don’t care what Jim Carr says that no consent is necessary….. Consent, it’s what we are demanding and he will never get our consent, not for something like this…. What if we gave Canada 20 Standing Rocks? I wonder if his position will change then?”

Simon was referring to the Standing Rock Sioux Tribe which is currently trying to stop construction of an oil pipeline through North Dakota. The Standing Rock’s opposition to the pipeline triggered a historic Native American-led movement that has led to intense clashes with U.S. authorities and hundreds of arrests.

“We always knew the Trudeau government, a lot of his ministers, are influenced by the fossil fuel industry and a prime minister is only as good as how he handles the economy,” said Simon. “If we keep doing this, our children and their children are going to suffer the brunt of climate change.”

Simon is one of the lead spokespeople for an anti-pipeline alliance supported by about 85 First Nations and tribes which have signed a treaty to oppose new oil pipeline projects.

Carr made his comments laying out, for the first time, the Liberal government’s position on consultation in Ottawa Thursday when he was asked by reporters to comment on the release of a report from a three-person ministerial panel on the $6.8 billion proposed Trans Mountain expansion pipeline project.

The project would twin Kinder Morgan’s existing pipeline and increase capacity to 890,000 barrels of oil per day from the current 300,000 bpd. The 1,150 kilometre pipeline project would run from Edmonton to Burnaby, B.C.

In its report, the panel raised several questions about the project, including how the Liberal cabinet could square its commitment to reconciliation and to the UNDRIP principle of “free prior and informed consent” with the pipeline’s approval.

Facing repeated questions from reporters on the government’s position regarding free, prior and informed consent, Carr made it clear that consent is not part of the Liberal government’s equation when it comes to its approach to consultation. The government only believes it needs to consult and accommodate.

“We believe that to meaningfully consult and accommodate Indigenous peoples in the context of these energy reviews is the principal responsibility of the government of Canada,” said Carr, according to a transcript of the exchange. “That’s what we have done and that’s what we’ll continue to do.”

Assembly of First Nations National Chief Perry Bellegarde said Friday he expects the Trudeau government to abide by its commitments on UNDRIP.

“The government endorsed (UNDRIP) without qualification, and the UN declaration states the requirement of free, prior and informed consent by First Nations over any activities that can impact our rights, our people or our territory,” said Bellegarde, in a statement. “We fully expect Canada to honour that commitment and to work with First Nation to develop a national plan for implementing the UN declaration, including a joint law and policy review.”

International human rights lawyer Paul Joffe, who also worked on UNDRIP, said Carr’s description of the government’s position does not comply with Supreme Court decisions, nor the international declaration.

“It is highly problematic and it’s not helpful to the discussion and it’s not helpful to reconciliation,” said Joffe, who was provided with a transcript of Carr’s statements.

Joffe said the concept of consent in UNDRIP has been demonized, twisted and misinterpreted to mean a “veto.” He believes the Trudeau Liberal government doesn’t seem to grasp that consent is part of international human rights law and part of the tapestry woven by Supreme Court decisions on Aboriginal rights and title.

“For the minister to say we are going on the basis of consultation and accommodation, that doesn’t quite make sense, the way he is using it,” said Joffe. “Consultation is a spectrum, it hangs on the facts and the law. It might be minimal consultation in some cases…but at the other end of the spectrum, the Supreme Court said in the Haida case, that on very serious issues it would require the full consent of the Aboriginal nation. That is the full spectrum. On very serious issues, it would be consent.”

In its 2004 Haida decision, the Supreme Court, quoting the previous 1997 Delgamuukw decision, describes the spectrum of consultation.

“The content of the duty (to consult) varied with the circumstances: from a minimum ‘duty to discuss important decisions’ where the ‘breach is less serious or relatively minor;’ through the ‘significantly deeper than mere consultation’ that is required in ‘most cases,’ to ‘full consent of the Aboriginal nation’ on very serious issues,” said the court in Haida.

The Supreme Court’s 2015 Tsilhqot’in also mentions consent.

Joffe said he doesn’t understand how the Liberal government could both embrace UNDRIP and the Truth and Reconciliation Commission’s (TRC) 94 calls to action and yet ignore the principle of obtaining free, prior and informed consent.

“There is a further point which makes it very troubling what the minister is saying. The TRC in their 94 calls to action…indicate that they call on federal, provincial, territorial and municipal governments to adopt and implement the UNDRIP framework for reconciliation,” said Joffe. “So if one now attacks or undermines UNDRIP, one is also undermining the TRC calls to action.”

During the last federal election campaign, candidate Justin Trudeau told APTN’s Cheryl McKenzie his government would respect a First Nations “no” on major resource development projects.

[Top photo: (Supporters at a camp on the Standing Rock Sioux Tribe reservation. Standing Rock is currently battling construction of an oil pipeline in North Dakota. APTN/File)]