The federal government should recognize that its plan to legislate a United Nations declaration conflicts with Canadian constitutional law and will likely cause legal chaos, finds a new study released today by the Fraser Institute.
“Inserting yet more ambiguous language into Canadian law, which will inevitably affect the approval process for major infrastructure projects in Canada, is unwise and would likely lead to even more uncertainty,” said Tom Flanagan, Fraser Institute senior fellow and author of Squaring the Circle: Adopting UNDRIP in Canada.
The federal government has several times noted its plan to table legislation based on the United Nations Declaration of the Rights of Indigenous People (UNDRIP).
The study finds that key elements of the declaration, which calls for the “free, prior, and informed consent” of Indigenous peoples before any development projects take place on land they make claim to or inhabit, are not consistent with existing Canadian constitutional law.
Nevertheless, in November the Government of British Columbia passed its own legislation based on the declaration.
And according to the study, the ambiguity of B.C.’s new law—which seeks to “ensure the laws of British Columbia are consistent with the Declaration” while also stressing that “nothing in this Act is to be construed as delaying the application of the Declaration to the laws of British Columbia”—leaves the door open for wide interpretation.
Indeed, several Wet’suwet’en hereditary chiefs (who opposed the Coastal GasLink pipeline in B.C.) claimed the new legislation gave them the right to veto the project’s construction.
“If natural resource projects continue to be delayed or scuttled altogether, many First Nations that see resource development as their best chance for economic progress will continue to struggle with poverty,” Flanagan said.
The Fraser Institute is an independent, non-partisan Canadian public policy think-tank.