Expanding consent requirement makes veto irrelevant

Prime Minister Justin Trudeau’s junking of an election promise to give Indigenous peoples a veto over resource projects took some of the froth out of his fizzy relationship with us. 

But the focus on the V-word has distracted us from a C-word that may turn out to be more significant.

 “Consent” has been in the air lately since JT indicated that Canada would “implement” the United Nations Declaration on the Rights of Indigenous Peoples, which requires us to give our “free and informed consent prior to the approval of any project affecting our land or territories…” 

Regardless of whether Trudeau bails on the UNDRIP promise also, recent court decisions appear to have tentatively accepted some notion of a consent requirement over resource development. Indeed, the latest issue of publication for corporate lawyers says one such decision “is sending tremors through the resource sector.” 

In Tshlhqot’in, the Supreme Court of Canada dealt with the First Nation’s claim to 1,750 square kilometres of central BC. The court ruled that consent of the First Nation would be required for any project that would deprive future generations of the benefit of the land [para 86 at http://bit.ly/1GGZSJC . 

Of course, not all resource projects would meet that high threshold in which consent would be required. In less invasive projects, there would only be a duty to “consult.” 

However, there has been a trickledown effect from the decision, according to the article in Lexpert http://bit.ly/1GGZSJC , with “some provincial government officials...quietly making it clear to developers that they won’t get approvals for their projects unless they have a signed deal with the affected Aboriginal groups in place…” 

But one legal expert says that getting such consent may be in corporate best interests. Shin Imai says in a paper at http://bit.ly/1TqXIYg that many industry groups are already bringing a consent requirement into their internal guidelines. 

For example, the International Council on Mining and Metals “explicitly requires its member companies to ‘work to obtain the consent of indigenous communities for new projects (and changes to existing projects) that are located on lands that are traditionally owned by or under customary use of Indigenous peoples and are likely to have significant adverse impacts…” 

Council members are not just being nice guys, Imai suggests. “[C]osts of community conflict are significant and can result in serious impacts on companies, including suspensions and closures of projects.” 

Judicial and corporate recognition of the consent requirement may make the quest for veto less important. The different between the two, Imai says, is that veto suggests a unilateral right to nix a project without any justification or consideration whatsoever. 

Consent, on the other hand, is part of a deliberative process that includes an assessment of pros and cons and approval – or not – of the project in question. 

Indigenous peoples are desperate to escape the profound poverty bequeathed to them by colonization. No doubt, there will be many worthy resource development projects in which First Nations will be enthusiastic partners.

 But our lands are at the core of who we are as Indigenous peoples. Companies who ignore that essential truth do so at their peril.