I’ve said it for the last five months — Trump and the threat he represents to Canada is the EASY challenge for Carney and the Federal Government compared to Reconciliation or whatever we want to call the question of the Canada-Indigenous relationship.
The current situation with the jurisprudence around the Treaties and S.35 of the Constitution, let alone the UNDRIP Act which is only starting to make its way into legal decisions, in my opinion has effectively ended what we grew up considering the country of Canada, as in a sovereign Crown that (with its federalist counterparts in the Provinces) makes decisions in its borders and has absolute sovereignty. This is no longer the case — the country as it stands now is de-facto co-sovereign with First Nations.
To me, we either come to a productive version of co-sovereignty — a new Grand Bargain, Indigenous Voice in Parliament, whatever you want to call it — and move forward, or the country is cooked. We aren’t going to get any investment and standard of living will decline and we are ripe for a genuine economic takeover by the US or other powers, starting with Alberta leaving Confederation.
For those saying we should go hard at this and repeal UNDRIP, change the Constitution to remove S.35, and rip up the Treaties (basically accomplish by force of conquering what was attempted by Treaty 150 years ago) — do you understand that violence on our shores is not unthinkable? Sure, there are 40 million Settler Canadians and 1 million Indigenous. Nobody disputes that ultimately might makes right in the world. But how far are you willing to take this? Israel is conquering Gaza, too; nobody disputes the military superiority there.
Well stated. I agree that this is the biggest single issue facing Canada at the moment. Yes, Trump is a serious problem, but Canada’s current responses to him require some kind of resolution to the issue of Canada-Indigenous relations.
Some type of co-sovereignty is almost inevitable. Our law, as you stated, is pretty clear on this. Canada, both “settlers” and Indigenous, are still trying to figure out how to even talk about it, let alone what it might look like. It is complicated by the number of Indigenous constituencies and the multiple levels of government.
Geoff, you write in part, "... violence on our shores is not unthinkable ..."
That was proven in the Coastal Gas Link project. Communities who were supportive of the project were invaded by groups associated with "tribal elders" who actually held no specific tribal position (well, other than being born) and those groups perpetrated violence, destroyed equipment, etc. The cops did pretty much nothing, for the usual reasons (they didn't want to annoy the purported "elders", the rule of law be damned!
So, yes, we must be aware of the possibility of violence but that simply means that real consultation must be carried out but consultation should never be viewed as a right to a veto. Real consultation should result in some people happy, some less so and should come to the most reasonable conclusion. And, the cops need to ensure the law is enforced.
UNDRIP is currently the law - dammit! It has created expectations and those expectations must be managed so that folks understand what is and what is not possible. If it is the government's position that the natives actually do have a veto then that should be stated clearly so that those of us who feel that to be unreasonable can know that it seems that we should leave this country, either emigration or secession.
As for amending the constitution, that is simply dreaming in technicolor; it ain't gonna happen.
There is such a thing as accepting a little bit of violence to prevent the outbreak of a LOT of violence. Unless you think that a million Indigenous people couldn’t launch an actual credible insurgency and make life very, very difficult in Canada for a long time?
I’d prefer to not have an IRA or a Basque ETA here, personally.
It’s going to need statesmanship by our Federal Government and by First Nations leaders.
And on one’s personal plans if this doesn’t improve. I’m with you. I have EU citizenship — I don’t want to leave the country I was born in but I also am not dooming my kids to grow up here as we become the Argentina of the North because we are co-sovereign with groups that don’t want modern industrial civilization.
We need a Grand Bargain with FN, but we also need FN to want modern industrial civilization, or I’m likely out of here.
Geoff, that sounds suspiciously like the fake rationale that the various police departments have been using to excuse the Palestinian goofs who have terrorized Jewish schools, communities and the public at large.
The truth is that the way that the "co-sovereignty" is working is that the natives have sovereignty and vetoes over such things as pipelines. Non-natives do not have any such rights. I understand fully that the natives were not treated at all well in the past but they now have the power to do to non-native Canada what was done to them. And worse. You might view that as just, I don't. As the old aphorism goes, two wrongs don't make a right.
You will never get a "Grand Bargain" simply because each native band views itself as sovereign. You will never get the first nations to buy into the concept of a modern industrial civilization; you just won't.
I understand why you would likely leave. I am too old and too near to the end of life to start anew; my kids and grandkids, however.....
Oh, and, as far as I am concerned, we are already the Argentina of the North. The old Argentina, not the current one with the dynamic President.
The 2 sets of chiefs are our fault. We signed the Treaties without figuring out who was going to be in charge. So the Court "solved" it, and paralysis followed. We've known for a decade that it has to be addressed and have done nothing.
So, the feds should unsolve it by clearly defining who is and who is not allowed to speak for each side.
Provocative, yes; simple, no. But, necessary and requiring skill and courage. Those last two qualities are in terrifically short supply, particularly because the feds (and provinces) do not recognize necessity.
Don't you mean sit down, talk, debate, and clarify? Isn't imposing our opinion the reason we're still in this mess? If we impose, we're right back in court, and the government loses...again.
The UNDRIP Act is a law passed in 2021 that could be repealed by an Act of Parliament.
However, the current state of play is actually mostly based on jurisprudence around the Treaties and s.35 of the Constitution. Those are much harder to modify.
John, this law is not going to be ignored, I can tell you.
UNDRIP is a rotten United Nations concept that Canada passed and absolutely did not consider the consequences. Oh, there were people who talked about the entirely foreseeable consequences but the politicians said, "On tish, oh tosh, that would never happen. You are just a racist."
Any attempt to ignore the UNDRIP legislation will end up before the Supremes and they will absolutely uphold it if (very, very recent) history is anything by which to judge.
Any attempt to repeal UNDRIP will lead to the usual left-right divide and a HUGE political fight simply because ever so many people in this country just don't understand that words have consequence.
The Canadian gov't of the day did consider the consequences. It positioned the Prime Minister, in his eyes, as a person to be admired. It ensured, in this view, that he would have a place of stature in Cdn history. Yes, there was an element of sincere reconciliation, but inflating a politician's ego was high up, and likely at the top of, the list of desired consequences.
It’s actually even worse than this: most of the current jurisprudence doesn’t even depend on the UNDRIP Act; it’s based on the Treaties and s.35 of the Constitution. One can only imagine how far the Supreme Court is going to carry co-sovereignty as the UNDRIP Act starts to be seriously incorporated into case law!
And that is why I have come to the conclusion that Canada is a failed project.
Carrying further that thought, I have further concluded that the only route forward for my province (Alberta) is to not be in this country. How that occurs and the resulting destination for Alberta is yet to be determined. I am quite ambivalent (understatement!) about the US but I cannot discount it as a way forward for us. There are other possibilities, but ...
You may not understand it, but it’s not for you (or I) to decide. It’s up to the Supreme Court. And they have been very clear over the past 25 or so years on their interpretation of the Treaties and s.35.
I underestimate the importance of our Supreme Court while I follow the US Supreme Court for entertianment purposes, even though our court has so much impact on me and the American one has virtually none.
I’m often guilty of this too. The US is just so noisy and entertaining!
But yeah, seriously, the Canadian Supreme Court has basically been rewriting the very foundations of our sovereignty through the various Indigenous cases, especially the famous Haida Nation v. British Columbia (Minister of Forests) (2004).
The only way to proceed with national infrastructure projects is to use a war measures style piece of legislation mandating energy corridors and projects. No private capital will enter Canada with the present environment of judicial obstruction on demand. Carney is going to have to repeal UNDRIP and make the hard call.
See my reply below. Repealing UNDRIP wouldn’t be enough to restore the “1960s approach” to developing energy projects (ie no Indigenous consent required). The current state of play is set by jurisprudence based on the Treaties and s.35 of the Constitution — the courts have *only just begun* to even consider the UNDRIP Act in their jurisprudence around Indigenous consent for resource projects.
If you’re talking about going even further and modifying the Constitution — how far are you willing to take this? Have you considered the potential consequences?
Has any Canadian government worked with the Supreme Court to clarify or even narrow its interpretation of the Treaties and S35? Requiring consultation over use of public land seems to elevate indigenous citizens above non-indigenous citizens. A government that doesn't treat all citizens as equals is doomed to fail. Also, the justification that consultation is required because indigenous citizens have the right to sustain themselves from public lands is weak. Few actually do so and the ratio of indigenous people to the area of public lands is small. Projects that impact small percentages of those public lands do not have material impacts on this largely unused right. Finally, what's to stop the courts from deciding that development of private land impacts public land and therefore requires consent as well?
Doug, you write in part, "Has any Canadian government worked with the Supreme Court to clarify or even narrow ...."
Oh, you mean prior bribery or otherwise persuading the Supremes. That would be enough to cause any subsequent SCC decision to be thrown out. Or, the government's case would be thrown out. And correctly, unfortunately. The Supremes must decide based on law, not a nudge, nudge, wink, wink.
You further write in part, "A government that doesn't treat all citizens as equals is doomed to fail." Yup. I am an Albertan and I am living proof that people feel that way.
I recommend that you see an opinion piece in the National Post (last week, I believe) where the comment was about BC's legislation that went further down the UNDRIP rabbit hole and how the majority of BC citizens have far, far fewer rights (none?) as compared to natives. You can be sure that the columnist was hyperventilating and likely over reached a little but there is absolutely some truth there.
Truth is, this whole area has been accepted whole cloth by Canada's chattering classes and almost all citizens have not yet caught on; this is an area that Carney has also not taken into account. Carney says two years to get a thumbs up or thumbs down on a project; he is delusional given this issue.
More important question to answer is whether the Canadian law aims at being conducive to productive development, or whether the law aims at stifling any development.
The law has been so badly written (for example, UNDRIP, for example, the Impact Assessments Act, etc., etc.) that it is incomprehensible and/or gives absolute power to natives over the rest of society. And those are only two pieces of legislation; there are others as well. That is the law side.
The Supremes - as currently constituted - have never seen a case where they didn't decide on the basis of the (please pardon the use of the word - I cannot find another) woke side of things. They have "read in" to many laws of Parliament and to the Constitution new "rights" that are not literally in that legislation but are now required to be thought of as if they were written in to the legislation/Constitution.
Great article. I too, support the idea of an utility corridor across the country and perhaps even to the north....perhaps something like that can happen now the Churchill MB and James Bay deep ports have been suggested as obvious next moved. I'm all in for some action. Helpful too that Wab is indigenous.
Great article, I learned more about Canada's past and present. Carney's Bill C5 is a cake made of rancid cream that he placed on top of a pile of Trudeau's destructive laws. He will not repeal those law 'cuz he will use them as an excuse to do nothing. Because of "consensus". So he has bill C5, his rancid cake on top of Trudeau's pile of dung. Carney's type of resource development will result in nothing but political stink and no positive results. If he were serious, he would repeal Trudeau's laws, which he undoubtedly helped to draft, in their entirety. Rewrites are meant to be a lengthy delay tactic and a deliberate waste of time, including protracted consultations.
💯 on 🎯. Bill C-5 is the only thing “accomplished” by the Carney new and improved Liberal government, 3 months after the most important election in the history of Canada 🙄. The only thing Bill C-5 accomplished is giving the Liberal government the authority to override laws and regulations for “projects deemed in the national interest” one can only imagine the projects that will come out of this government. Pipelines or anything to do with energy are dead in the water in Canada as long as this government remains in power. Alberta and Saskatchewan need to trigger separation referendums at the earliest opportunity, before Canada gets signed over to the EU.
Now, having said and acknowledged that, I adamantly believe that it is reasonable to NOT simply do things "as usual." So, by all means, consult, but don't send out the "commissioners" or whomever to meet x hours a day, y days a week but, instead, send out 2 (or 3 or whatever number) of commissioners who will meet six days a week. Have a staff back at home base (Ottawer? Wherever) who monitor the results of meetings (those electronic thingys, you know: telephones, recordings, videos, etc.) and require the "commissioners" or whomever to summarize what they heard each day before the end of the day.
My point is that simply doing what we have done in the past is the standard recipe for delay. Find ways to not only do the proper consultation but to simultaneously accelerate the process. My way will make hearings more costly but will result in allowing full consultations in a reasonable amount of time.
I would also note that it is important to determine and make absolutely clear the ground rules for who can speak for groups (e.g. native bands) as distinct from who can speak only for themselves. That would also be useful because if the latter group later decide to put together a mob and destroy construction equipment (see the Coastal Gas Link violence where the communities supported the construction but agitators who only CLAIMED to represent the communities did the violence), then the cops can arrest without fear, etc., etc.
And, oh yes, ensure that all participants know that this is a consultation, not a discussion that can lead to a veto on development. The "commissioners" can recommend for or against a project proceeding and/or put conditions on that project but the participants themselves do NOT have a veto, only the right to be heard and to be taken seriously. Consultation means discussion, the end result of which will please some people and displease other people.
Ultimately, I agree with Prof. Fellows that shortcuts can be dangerous but longcuts don't have to be unduly delaying if they are done concurrently, not consecutively.
I must clarify .... above I said, among other things, "... end out 2 (or 3 or whatever number) ...) what I was meaning was that there should be 2 or three or whatever number of TEAMS of commissioners. There should be hearings held simultaneously in community A, in community B, community C, etc. and the "head office" folk should monitor all hearings and should in real time keep summaries, profound and little commentary available for all and should ensure that this whole process doesn't bog down but a) allows folks to be consulted and heard, but b) does not drag out simply because these hearings are being held concurrently not consecutively.
Good article. I am not sure co-sovereignty is inevitable but I do think First Nations are looking for respect, acknowledgements and a meaningful role in decisions and management of traditional lands. The delay with TransMountain resulted directly from the federal government failing to complete meaningful consultation and engagement with First Nations. I think issues related to Northern Gateway and Coastal were also a direct result of lack of meaningful engagement. And with the adoption of UNDRIP, the need for meaningful engagement of First Nations is only going to grow.
My experience is private sector developers can and have done a pretty good job of engaging and sharing benefits with affected First Nations, especially if they know the ground rules; as exemplified with the LNG projects and Trans Mountain. The real issue is the lack of meaningful engagement by Federal and Provincial governments.
My sense is one approach to providing meaningful engagement would be to include First Nations representatives on tribunals making decisions on projects on traditional lands. In the past, First Nations have been intervenors, not actually part of the decision making structure. And having the federal government meeting its obligations under various treaties and providing fair compensation for rights infringement would also help.
"failing to complete meaningful consultation and engagement"
The problem is that that phrase is a moving target. Put differently, what that meant twenty years ago is different than what it meant ten years ago and is surely different than what it means now. Further, if the government tries to do "state of the art" consultation and engagement today one has to consider whether the courts will up the bar yet again when it inevitably ends up before the courts, all the way the SCC, with each court level getting a kick at the definition.
The challenge, of course, will be that first nations are not a monolith, and whoever was going to sit on a tribunal would need to be selected by first nations and respected by those first nations. Between that and the federal and provincial governments fulfilling their responsibilities to first nations would be a good first step. I think that the probability of first nations accepting decisions which went against their views, but those groups believing they had a full opportunity to voice their opinions and have those opinions considered in the overall decision would be much greater with more deliberate attempts to include them in the decision-making process.
Manitoba has tidewater on Hudson’s Bay. At Churchill or maybe a new port at Port Nelson. And if you need to get products to Ontario or Quebec from there, build other ports across the bay as needed.
And cross native territory with roads and railroads and other infrastructure, all of which will be subject to hearings, consultations and other delaying tactics.
As opposed to what exactly? First Nations are a core component of Canada.
The federal government is pledging to consult without encouraging delaying tactics, and Wab Kinew is hardly likely to green light projects without First Nations support. Churchill is extremely doable at the moment. As opposed to plowing through a BC NDP government or a Quebec PQ government, which is not very doable at all.
Brian, I have separately in this series of posts commented about the need for meaningful and thoughtful consultation but that speed is necessary. I have offered a way to ensure that both of those objectives can be met. Put simply, I propose that hearings be serious but be concurrent and not be consecutive.
The point is to ensure that folks are heard and that their viewpoints are truly considered.
Another commenter essentially said that nothing will happen unless and until the first nations agree to and buy in to modern society (my paraphrase not his specific words). I don't necessarily agree with him but it is important to acknowledge that the first nations DO have legitimate concerns.
Therefore it is important that their concerns be heard and considered. Note, I said "considered" and that does not mean that they automatically have a veto but it does mean that if someone is adamantly opposed they may well be disappointed if the "commissioners" can develop some rational work around. It may, on the other hand, be the proponents who are disappointed if the conditions are (in their view) too onerous or if they are told to change routes, etc.
Ultimately, the point is to accomplish speed but entirely honest and true consultation. Those appear to be conflicting goals but they don't have to be, hence my suggestion of concurrent not consecutive hearings. That would require a number of teams of hearing panels and would similarly require a headquarters process to ensure accuracy, fidelity and widespread dissemination of testimony of all simultaneous hearings.
Call it Reconciliation or Reconstruction or Re-imagining or whatever you like. Geoff, you've put your finger on the issue confronting us all only to suggest that the most fruitful approach is amputation, if I understand you well. With some trepidation, I have to say as a non-Indigenous person, I am appalled by the tone of these comments. Our Indigenous communities appear to be absolutely correct in their understanding of the level of respect they can anticipate, if the voices here are anything to go by. Kent, you are right to my way of thinking: when we say we are obligated to speak together about the issues that affect us all, WE HAVE TO MEAN IT. Bringing some good will to the table wouldn't hurt, either.
I would suggest that rather than bitching and moaning about our history of multiple wellsprings, we recognize the extraordinary opportunity this is: to do something very, very difficult that no one else on the planet has managed--weaving all our strands of origin into a fabric of understanding and creativity that enriches us all. When our Indigenous neighbors tell us we're not listening we should take them seriously and do something about it.
I think you meant to reply to me with this and not put it as a standalone comment?
But anyway, I actually agree with you. I think trying to revoke section 35 or whatever the more aggressive conservative commentators on here say we should do is a pipe dream and would tear this country apart and create a lot of violence to boot.
I hope with all my heart that both sides can come to the table with genuine intent to reach a bargain here and come out with something that looks like a new deal for Canada and first Nations, and lets us go forward together.
I have to say, though, I’m a bit pessimistic when I see the naïveté on what it takes to sustain a modern industrial civilization. This isn’t just among First Nations activists, many of my fellow urban voters also seem to think that their iPhones and their groceries from around the world and their modern standard of living is doable on sunshine and unicorns. In reality, unless we are just willing to outsource our sins to China, it takes a huge amount of dirty extraction and factories and power and all the rest of it. I wish everyone would read Vaclav Smil’s books.
Are there any lessons to be learned from the TransCanada Highway or the TransCanada Pipeline? I know that Indigenous issues were not considered at the time, but perhaps both can help with the provinces.
Not sure there is much we can learn from projects prior to the 1990s, because it was a completely different environment for Indigenous consent and that’s the main critical issue these days.
Maybe we could learn something about environmental permitting and how to overcome NIMBYism, but my sense is it’s basically — accept more local environmental damage (waterways, wildlife, etc.) and be willing to expropriate and ignore local opposition.
This is what a respectful and informative comment section looks like. I’m more informed having read it, and more aware of the difficulties we have created here. I’m not sure if there is a path to long term success.
I have long ago given up on Canada ever being able to accomplish anything. Canadians have become selfish, incapable navel gazers, unable to get out of their own way and unable to see the forest for the trees. Most have become dependant on one government program or another. The west could be powerful but everything it tries gets ridiculed and obstructed by central Canadians who think they know best because, you know, they’re the central elite! In order to build anything, someone will need to put their foot down and put the interest of the country first. Such politician doesn’t exist, they’re too concerned about the next election.
I’ve said it for the last five months — Trump and the threat he represents to Canada is the EASY challenge for Carney and the Federal Government compared to Reconciliation or whatever we want to call the question of the Canada-Indigenous relationship.
The current situation with the jurisprudence around the Treaties and S.35 of the Constitution, let alone the UNDRIP Act which is only starting to make its way into legal decisions, in my opinion has effectively ended what we grew up considering the country of Canada, as in a sovereign Crown that (with its federalist counterparts in the Provinces) makes decisions in its borders and has absolute sovereignty. This is no longer the case — the country as it stands now is de-facto co-sovereign with First Nations.
To me, we either come to a productive version of co-sovereignty — a new Grand Bargain, Indigenous Voice in Parliament, whatever you want to call it — and move forward, or the country is cooked. We aren’t going to get any investment and standard of living will decline and we are ripe for a genuine economic takeover by the US or other powers, starting with Alberta leaving Confederation.
For those saying we should go hard at this and repeal UNDRIP, change the Constitution to remove S.35, and rip up the Treaties (basically accomplish by force of conquering what was attempted by Treaty 150 years ago) — do you understand that violence on our shores is not unthinkable? Sure, there are 40 million Settler Canadians and 1 million Indigenous. Nobody disputes that ultimately might makes right in the world. But how far are you willing to take this? Israel is conquering Gaza, too; nobody disputes the military superiority there.
Well stated. I agree that this is the biggest single issue facing Canada at the moment. Yes, Trump is a serious problem, but Canada’s current responses to him require some kind of resolution to the issue of Canada-Indigenous relations.
Some type of co-sovereignty is almost inevitable. Our law, as you stated, is pretty clear on this. Canada, both “settlers” and Indigenous, are still trying to figure out how to even talk about it, let alone what it might look like. It is complicated by the number of Indigenous constituencies and the multiple levels of government.
🎯🎯very well said. 😐
Geoff, you write in part, "... violence on our shores is not unthinkable ..."
That was proven in the Coastal Gas Link project. Communities who were supportive of the project were invaded by groups associated with "tribal elders" who actually held no specific tribal position (well, other than being born) and those groups perpetrated violence, destroyed equipment, etc. The cops did pretty much nothing, for the usual reasons (they didn't want to annoy the purported "elders", the rule of law be damned!
So, yes, we must be aware of the possibility of violence but that simply means that real consultation must be carried out but consultation should never be viewed as a right to a veto. Real consultation should result in some people happy, some less so and should come to the most reasonable conclusion. And, the cops need to ensure the law is enforced.
UNDRIP is currently the law - dammit! It has created expectations and those expectations must be managed so that folks understand what is and what is not possible. If it is the government's position that the natives actually do have a veto then that should be stated clearly so that those of us who feel that to be unreasonable can know that it seems that we should leave this country, either emigration or secession.
As for amending the constitution, that is simply dreaming in technicolor; it ain't gonna happen.
There is such a thing as accepting a little bit of violence to prevent the outbreak of a LOT of violence. Unless you think that a million Indigenous people couldn’t launch an actual credible insurgency and make life very, very difficult in Canada for a long time?
I’d prefer to not have an IRA or a Basque ETA here, personally.
It’s going to need statesmanship by our Federal Government and by First Nations leaders.
And on one’s personal plans if this doesn’t improve. I’m with you. I have EU citizenship — I don’t want to leave the country I was born in but I also am not dooming my kids to grow up here as we become the Argentina of the North because we are co-sovereign with groups that don’t want modern industrial civilization.
We need a Grand Bargain with FN, but we also need FN to want modern industrial civilization, or I’m likely out of here.
Geoff, that sounds suspiciously like the fake rationale that the various police departments have been using to excuse the Palestinian goofs who have terrorized Jewish schools, communities and the public at large.
The truth is that the way that the "co-sovereignty" is working is that the natives have sovereignty and vetoes over such things as pipelines. Non-natives do not have any such rights. I understand fully that the natives were not treated at all well in the past but they now have the power to do to non-native Canada what was done to them. And worse. You might view that as just, I don't. As the old aphorism goes, two wrongs don't make a right.
You will never get a "Grand Bargain" simply because each native band views itself as sovereign. You will never get the first nations to buy into the concept of a modern industrial civilization; you just won't.
I understand why you would likely leave. I am too old and too near to the end of life to start anew; my kids and grandkids, however.....
Oh, and, as far as I am concerned, we are already the Argentina of the North. The old Argentina, not the current one with the dynamic President.
The 2 sets of chiefs are our fault. We signed the Treaties without figuring out who was going to be in charge. So the Court "solved" it, and paralysis followed. We've known for a decade that it has to be addressed and have done nothing.
So, the feds should unsolve it by clearly defining who is and who is not allowed to speak for each side.
Provocative, yes; simple, no. But, necessary and requiring skill and courage. Those last two qualities are in terrifically short supply, particularly because the feds (and provinces) do not recognize necessity.
Don't you mean sit down, talk, debate, and clarify? Isn't imposing our opinion the reason we're still in this mess? If we impose, we're right back in court, and the government loses...again.
It might be a bit early but on recent trends, we might soon wish we were the Argentina of the North.
I don't understand Canada's UNDRIP commitments. How easy would it be to walk away from them?
The UNDRIP Act is a law passed in 2021 that could be repealed by an Act of Parliament.
However, the current state of play is actually mostly based on jurisprudence around the Treaties and s.35 of the Constitution. Those are much harder to modify.
Treaties get ignored all the time. I don't understand how we are so bound up in treaties that were signed before Canada was a country.
John, this law is not going to be ignored, I can tell you.
UNDRIP is a rotten United Nations concept that Canada passed and absolutely did not consider the consequences. Oh, there were people who talked about the entirely foreseeable consequences but the politicians said, "On tish, oh tosh, that would never happen. You are just a racist."
Any attempt to ignore the UNDRIP legislation will end up before the Supremes and they will absolutely uphold it if (very, very recent) history is anything by which to judge.
Any attempt to repeal UNDRIP will lead to the usual left-right divide and a HUGE political fight simply because ever so many people in this country just don't understand that words have consequence.
The Canadian gov't of the day did consider the consequences. It positioned the Prime Minister, in his eyes, as a person to be admired. It ensured, in this view, that he would have a place of stature in Cdn history. Yes, there was an element of sincere reconciliation, but inflating a politician's ego was high up, and likely at the top of, the list of desired consequences.
Ah! You mean THOSE consequences ... appearance, etc.
They didn't consider the REAL consequences.
Idiots.
It’s actually even worse than this: most of the current jurisprudence doesn’t even depend on the UNDRIP Act; it’s based on the Treaties and s.35 of the Constitution. One can only imagine how far the Supreme Court is going to carry co-sovereignty as the UNDRIP Act starts to be seriously incorporated into case law!
Your thoughtful reply does not fill me with optimism.
And that is why I have come to the conclusion that Canada is a failed project.
Carrying further that thought, I have further concluded that the only route forward for my province (Alberta) is to not be in this country. How that occurs and the resulting destination for Alberta is yet to be determined. I am quite ambivalent (understatement!) about the US but I cannot discount it as a way forward for us. There are other possibilities, but ...
You may not understand it, but it’s not for you (or I) to decide. It’s up to the Supreme Court. And they have been very clear over the past 25 or so years on their interpretation of the Treaties and s.35.
I underestimate the importance of our Supreme Court while I follow the US Supreme Court for entertianment purposes, even though our court has so much impact on me and the American one has virtually none.
I’m often guilty of this too. The US is just so noisy and entertaining!
But yeah, seriously, the Canadian Supreme Court has basically been rewriting the very foundations of our sovereignty through the various Indigenous cases, especially the famous Haida Nation v. British Columbia (Minister of Forests) (2004).
The only way to proceed with national infrastructure projects is to use a war measures style piece of legislation mandating energy corridors and projects. No private capital will enter Canada with the present environment of judicial obstruction on demand. Carney is going to have to repeal UNDRIP and make the hard call.
See my reply below. Repealing UNDRIP wouldn’t be enough to restore the “1960s approach” to developing energy projects (ie no Indigenous consent required). The current state of play is set by jurisprudence based on the Treaties and s.35 of the Constitution — the courts have *only just begun* to even consider the UNDRIP Act in their jurisprudence around Indigenous consent for resource projects.
If you’re talking about going even further and modifying the Constitution — how far are you willing to take this? Have you considered the potential consequences?
Has any Canadian government worked with the Supreme Court to clarify or even narrow its interpretation of the Treaties and S35? Requiring consultation over use of public land seems to elevate indigenous citizens above non-indigenous citizens. A government that doesn't treat all citizens as equals is doomed to fail. Also, the justification that consultation is required because indigenous citizens have the right to sustain themselves from public lands is weak. Few actually do so and the ratio of indigenous people to the area of public lands is small. Projects that impact small percentages of those public lands do not have material impacts on this largely unused right. Finally, what's to stop the courts from deciding that development of private land impacts public land and therefore requires consent as well?
Doug, you write in part, "Has any Canadian government worked with the Supreme Court to clarify or even narrow ...."
Oh, you mean prior bribery or otherwise persuading the Supremes. That would be enough to cause any subsequent SCC decision to be thrown out. Or, the government's case would be thrown out. And correctly, unfortunately. The Supremes must decide based on law, not a nudge, nudge, wink, wink.
You further write in part, "A government that doesn't treat all citizens as equals is doomed to fail." Yup. I am an Albertan and I am living proof that people feel that way.
I recommend that you see an opinion piece in the National Post (last week, I believe) where the comment was about BC's legislation that went further down the UNDRIP rabbit hole and how the majority of BC citizens have far, far fewer rights (none?) as compared to natives. You can be sure that the columnist was hyperventilating and likely over reached a little but there is absolutely some truth there.
Truth is, this whole area has been accepted whole cloth by Canada's chattering classes and almost all citizens have not yet caught on; this is an area that Carney has also not taken into account. Carney says two years to get a thumbs up or thumbs down on a project; he is delusional given this issue.
Also, how is the legal framework different in the US, which also has Treaties?
This is a very good question and I don’t have any knowledge of this, so I asked chatgpt o4 and it gave a great answer, here’s a public link to it:
https://chatgpt.com/share/68827584-1554-8008-b216-2a7a163cc715
One consequence of not modifying the Constitution, not a potential but a guaranteed consequence, is the breakup of Canada.
Is it judicial obstruction or the judiciary ensuring that our governments follow Canadian law?
More important question to answer is whether the Canadian law aims at being conducive to productive development, or whether the law aims at stifling any development.
Rob, it is both simultaneously.
The law has been so badly written (for example, UNDRIP, for example, the Impact Assessments Act, etc., etc.) that it is incomprehensible and/or gives absolute power to natives over the rest of society. And those are only two pieces of legislation; there are others as well. That is the law side.
The Supremes - as currently constituted - have never seen a case where they didn't decide on the basis of the (please pardon the use of the word - I cannot find another) woke side of things. They have "read in" to many laws of Parliament and to the Constitution new "rights" that are not literally in that legislation but are now required to be thought of as if they were written in to the legislation/Constitution.
Great article. I too, support the idea of an utility corridor across the country and perhaps even to the north....perhaps something like that can happen now the Churchill MB and James Bay deep ports have been suggested as obvious next moved. I'm all in for some action. Helpful too that Wab is indigenous.
Great article, I learned more about Canada's past and present. Carney's Bill C5 is a cake made of rancid cream that he placed on top of a pile of Trudeau's destructive laws. He will not repeal those law 'cuz he will use them as an excuse to do nothing. Because of "consensus". So he has bill C5, his rancid cake on top of Trudeau's pile of dung. Carney's type of resource development will result in nothing but political stink and no positive results. If he were serious, he would repeal Trudeau's laws, which he undoubtedly helped to draft, in their entirety. Rewrites are meant to be a lengthy delay tactic and a deliberate waste of time, including protracted consultations.
💯 on 🎯. Bill C-5 is the only thing “accomplished” by the Carney new and improved Liberal government, 3 months after the most important election in the history of Canada 🙄. The only thing Bill C-5 accomplished is giving the Liberal government the authority to override laws and regulations for “projects deemed in the national interest” one can only imagine the projects that will come out of this government. Pipelines or anything to do with energy are dead in the water in Canada as long as this government remains in power. Alberta and Saskatchewan need to trigger separation referendums at the earliest opportunity, before Canada gets signed over to the EU.
I get it, I get it: be careful with shortcuts!
Now, having said and acknowledged that, I adamantly believe that it is reasonable to NOT simply do things "as usual." So, by all means, consult, but don't send out the "commissioners" or whomever to meet x hours a day, y days a week but, instead, send out 2 (or 3 or whatever number) of commissioners who will meet six days a week. Have a staff back at home base (Ottawer? Wherever) who monitor the results of meetings (those electronic thingys, you know: telephones, recordings, videos, etc.) and require the "commissioners" or whomever to summarize what they heard each day before the end of the day.
My point is that simply doing what we have done in the past is the standard recipe for delay. Find ways to not only do the proper consultation but to simultaneously accelerate the process. My way will make hearings more costly but will result in allowing full consultations in a reasonable amount of time.
I would also note that it is important to determine and make absolutely clear the ground rules for who can speak for groups (e.g. native bands) as distinct from who can speak only for themselves. That would also be useful because if the latter group later decide to put together a mob and destroy construction equipment (see the Coastal Gas Link violence where the communities supported the construction but agitators who only CLAIMED to represent the communities did the violence), then the cops can arrest without fear, etc., etc.
And, oh yes, ensure that all participants know that this is a consultation, not a discussion that can lead to a veto on development. The "commissioners" can recommend for or against a project proceeding and/or put conditions on that project but the participants themselves do NOT have a veto, only the right to be heard and to be taken seriously. Consultation means discussion, the end result of which will please some people and displease other people.
Ultimately, I agree with Prof. Fellows that shortcuts can be dangerous but longcuts don't have to be unduly delaying if they are done concurrently, not consecutively.
I must clarify .... above I said, among other things, "... end out 2 (or 3 or whatever number) ...) what I was meaning was that there should be 2 or three or whatever number of TEAMS of commissioners. There should be hearings held simultaneously in community A, in community B, community C, etc. and the "head office" folk should monitor all hearings and should in real time keep summaries, profound and little commentary available for all and should ensure that this whole process doesn't bog down but a) allows folks to be consulted and heard, but b) does not drag out simply because these hearings are being held concurrently not consecutively.
Good article. I am not sure co-sovereignty is inevitable but I do think First Nations are looking for respect, acknowledgements and a meaningful role in decisions and management of traditional lands. The delay with TransMountain resulted directly from the federal government failing to complete meaningful consultation and engagement with First Nations. I think issues related to Northern Gateway and Coastal were also a direct result of lack of meaningful engagement. And with the adoption of UNDRIP, the need for meaningful engagement of First Nations is only going to grow.
My experience is private sector developers can and have done a pretty good job of engaging and sharing benefits with affected First Nations, especially if they know the ground rules; as exemplified with the LNG projects and Trans Mountain. The real issue is the lack of meaningful engagement by Federal and Provincial governments.
My sense is one approach to providing meaningful engagement would be to include First Nations representatives on tribunals making decisions on projects on traditional lands. In the past, First Nations have been intervenors, not actually part of the decision making structure. And having the federal government meeting its obligations under various treaties and providing fair compensation for rights infringement would also help.
"failing to complete meaningful consultation and engagement"
The problem is that that phrase is a moving target. Put differently, what that meant twenty years ago is different than what it meant ten years ago and is surely different than what it means now. Further, if the government tries to do "state of the art" consultation and engagement today one has to consider whether the courts will up the bar yet again when it inevitably ends up before the courts, all the way the SCC, with each court level getting a kick at the definition.
That sounds paranoid but there it is.
The challenge, of course, will be that first nations are not a monolith, and whoever was going to sit on a tribunal would need to be selected by first nations and respected by those first nations. Between that and the federal and provincial governments fulfilling their responsibilities to first nations would be a good first step. I think that the probability of first nations accepting decisions which went against their views, but those groups believing they had a full opportunity to voice their opinions and have those opinions considered in the overall decision would be much greater with more deliberate attempts to include them in the decision-making process.
Manitoba has tidewater on Hudson’s Bay. At Churchill or maybe a new port at Port Nelson. And if you need to get products to Ontario or Quebec from there, build other ports across the bay as needed.
And cross native territory with roads and railroads and other infrastructure, all of which will be subject to hearings, consultations and other delaying tactics.
As opposed to what exactly? First Nations are a core component of Canada.
The federal government is pledging to consult without encouraging delaying tactics, and Wab Kinew is hardly likely to green light projects without First Nations support. Churchill is extremely doable at the moment. As opposed to plowing through a BC NDP government or a Quebec PQ government, which is not very doable at all.
Brian, I have separately in this series of posts commented about the need for meaningful and thoughtful consultation but that speed is necessary. I have offered a way to ensure that both of those objectives can be met. Put simply, I propose that hearings be serious but be concurrent and not be consecutive.
The point is to ensure that folks are heard and that their viewpoints are truly considered.
Another commenter essentially said that nothing will happen unless and until the first nations agree to and buy in to modern society (my paraphrase not his specific words). I don't necessarily agree with him but it is important to acknowledge that the first nations DO have legitimate concerns.
Therefore it is important that their concerns be heard and considered. Note, I said "considered" and that does not mean that they automatically have a veto but it does mean that if someone is adamantly opposed they may well be disappointed if the "commissioners" can develop some rational work around. It may, on the other hand, be the proponents who are disappointed if the conditions are (in their view) too onerous or if they are told to change routes, etc.
Ultimately, the point is to accomplish speed but entirely honest and true consultation. Those appear to be conflicting goals but they don't have to be, hence my suggestion of concurrent not consecutive hearings. That would require a number of teams of hearing panels and would similarly require a headquarters process to ensure accuracy, fidelity and widespread dissemination of testimony of all simultaneous hearings.
Call it Reconciliation or Reconstruction or Re-imagining or whatever you like. Geoff, you've put your finger on the issue confronting us all only to suggest that the most fruitful approach is amputation, if I understand you well. With some trepidation, I have to say as a non-Indigenous person, I am appalled by the tone of these comments. Our Indigenous communities appear to be absolutely correct in their understanding of the level of respect they can anticipate, if the voices here are anything to go by. Kent, you are right to my way of thinking: when we say we are obligated to speak together about the issues that affect us all, WE HAVE TO MEAN IT. Bringing some good will to the table wouldn't hurt, either.
I would suggest that rather than bitching and moaning about our history of multiple wellsprings, we recognize the extraordinary opportunity this is: to do something very, very difficult that no one else on the planet has managed--weaving all our strands of origin into a fabric of understanding and creativity that enriches us all. When our Indigenous neighbors tell us we're not listening we should take them seriously and do something about it.
I think you meant to reply to me with this and not put it as a standalone comment?
But anyway, I actually agree with you. I think trying to revoke section 35 or whatever the more aggressive conservative commentators on here say we should do is a pipe dream and would tear this country apart and create a lot of violence to boot.
I hope with all my heart that both sides can come to the table with genuine intent to reach a bargain here and come out with something that looks like a new deal for Canada and first Nations, and lets us go forward together.
I have to say, though, I’m a bit pessimistic when I see the naïveté on what it takes to sustain a modern industrial civilization. This isn’t just among First Nations activists, many of my fellow urban voters also seem to think that their iPhones and their groceries from around the world and their modern standard of living is doable on sunshine and unicorns. In reality, unless we are just willing to outsource our sins to China, it takes a huge amount of dirty extraction and factories and power and all the rest of it. I wish everyone would read Vaclav Smil’s books.
Are there any lessons to be learned from the TransCanada Highway or the TransCanada Pipeline? I know that Indigenous issues were not considered at the time, but perhaps both can help with the provinces.
Not sure there is much we can learn from projects prior to the 1990s, because it was a completely different environment for Indigenous consent and that’s the main critical issue these days.
Maybe we could learn something about environmental permitting and how to overcome NIMBYism, but my sense is it’s basically — accept more local environmental damage (waterways, wildlife, etc.) and be willing to expropriate and ignore local opposition.
Continued never ending stagnation is the aim. For some.
This is what a respectful and informative comment section looks like. I’m more informed having read it, and more aware of the difficulties we have created here. I’m not sure if there is a path to long term success.
I have long ago given up on Canada ever being able to accomplish anything. Canadians have become selfish, incapable navel gazers, unable to get out of their own way and unable to see the forest for the trees. Most have become dependant on one government program or another. The west could be powerful but everything it tries gets ridiculed and obstructed by central Canadians who think they know best because, you know, they’re the central elite! In order to build anything, someone will need to put their foot down and put the interest of the country first. Such politician doesn’t exist, they’re too concerned about the next election.