First Nations leaders break with Ottawa on environmental policy

Published Thursday, Oct. 19, 2017 4:33PM EDT

Last updated Thursday, Oct. 19, 2017 4:33PM EDT

First Nations leaders have halted their collaboration with Liberal government on developing environmental legislation, arguing Ottawa is failing to make good on its vaunted commitments to work in partnership with Indigenous people.

In a letter to Prime Minister Justin Trudeau, three members of the Assembly of First Nations executive committee said they were promised that they would be full partners in crafting the rules under which major mining, oil and gas and pipeline projects would be assessed. They complained they are being left out of key decisions on the proposed legislation. The letter, dated Oct. 16, was provided to The Globe and Mail on Thursday.

“Technical discussions between officials have been largely one-sided and do not encompass the principles of collaboration and transparency that a nation-to-nation relationship must embody,” said the missive signed by three regional chiefs who are co-chairs of the AFN’s Advisory Committee on Climate Action and the Environment.

The Liberal government is in the process of overhauling four pieces of legislation – the National Energy Board Act, the Canadian Environmental Assessment Act, the Fisheries Act and the Navigation Protection Act –which govern how major resource projects are assessed and approved. The laws underwent major revisions under the former Conservative government, with the intent of speeding up regulatory approvals, but the Liberals – as well as many Indigenous leaders and environmental groups – argued the Conservatives tilted the playing field in favour of industry, and gave short shrift to environmental concerns and Indigenous rights.

In an interview, Ontario Regional Chief Isadore Day said the Liberal government is failing to give proper weight to environmental considerations and treaty rights as it prepares draft legislation, and is putting a greater emphasis on economic development.

“Our order of priority is environmental sustainability and then the national interest,” said Chief Day, an AFN executive member and one of the signatories to the letter. “The federal government’s order of priority is the national interest and then environmental sustainability.”

In keeping with the government’s policy of reconciliation, Natural Resources Minister Jim Carr and Environment Minister Catherine McKenna say Ottawa will partner with Indigenous leaders in developing the new environmental rules, as well as in monitoring their enforcement.

Chief Day said that public commitment is not being met.

“It’s a sad story but we have become strangers to the process,” he said in an interview. “I’m sensing we are in darkening times when it comes to sunny ways of this prime minister and his commitment to nation-to-nation relationship.”

In a statement from their offices, the two ministers insisted the government remains committed to working “in a renewed nation-to-nation relationship with Indigenous peoples, based on recognition of rights, respect, co-operation and partnership.

“Over the past year, the federal government has held more than 200 meetings with Indigenous peoples across the country, to discuss the path forward to restore Canadians’ trust in our environmental assessment and regulatory processes. The Assembly of First Nations has made substantial contributions to move forward the dialogue on improving these processes,” the ministers said in the joint statement.

At a two-day energy summit hosted by his department last week, Mr. Carr ensured Indigenous leaders had prominent roles while pledging that the government’s approach to resource-industry regulation would be guided by aboriginal values of “protection of the land, air and water.”

Behind the scenes, however, the government was facing a barrage of criticism from the AFN committee.

At a meeting in late September, the chiefs told the minister they disagreed with the government on key points, and that it would be wrong to state publicly that two sides were aligned. The minister responded that he was working hard to meet the government’s commitments on Indigenous relations and was “moving too fast for some and not fast enough for others,” according to an internal AFN briefing on the meeting provided to The Globe.

The meeting featured some heated exchanges between the AFN chiefs and Mr. Carr, and prompted the letter to the prime minister. However, in a signal of divisions within the AFN itself, National Chief Perry Bellegarde refused to sign the letter.

In a speech at the United Nations in New York last month, Prime Minister Trudeau acknowledged Canada is still operating under a colonial system put in place in the 19th and 20th century that deprived Indigenous people of their rights and left many of them in dire poverty.

He vowed to establish “nation-to-nation” relations based on the United Nations Declaration on the Rights of Indigenous Peoples, which includes rights to self-determination and to assert the need for free, prior and informed consent over developments that impact their traditional territory.

The AFN’s rebuke on what they believed to be “co-development” of environmental legislation illustrates the significant challenges the Liberals face as they look to put those principles in practice.

Rather than insist on the right to free, prior and information consent, the Liberals’ principles for relations with Indigenous people says the government “aims to secure” their consent “when Canada proposes to take actions which impact them and their rights, including their lands, territories and resources.” Mr. Carr said last week that the government must strike a balance among interests when assessing major projects like pipelines and mines.

In their letter to the prime minister, the three regional chiefs argue Ottawa’s commitment to implement the UN declaration “sets a standard that has not yet been met.”

The Liberals are overhauling legislation that was put in place five years ago by the previous Conservative government and was criticized for failing to properly account for Indigenous rights and environmental protection. The current government insist the new rules would reduce the likelihood of approvals being overturned by the courts, but Ontario Regional Chief Isadore Day said the changes do not go far enough in ensuring Indigenous people exercise free, prior and informed consent over project approvals.