Consent is Not a Four-Letter Word: What Next for the Trans Mountain Pipeline?
By Bruce McIvor
(Photo Credit: Ben Powless)
The principle of consent is also well established in international and Canadian law. The United Nations Declaration on the Rights of Indigenous Peoples has enshrined consent as the international standard. The federal government in its 10 principles respecting its relationship with Indigenous Peoples has endorsed consent-based processes (see principle #6).
In Canada, recognition of the requirement for Indigenous consent dates at least as far back as the Royal Proclamation of 1763. More recently, the Supreme Court of Canada in the Delgamuukw, Tsilhqot’in and Ktunaxa decisions has discussed when Indigenous consent is either required or, at the very least, is the preferred course of action.
Unfortunately, consent has been confused with ‘veto’, the favourite word of all who seek to marginalize and undermine Indigenous Peoples. In the context of Aboriginal law in Canada, veto refers to sitting on the sidelines and jumping up at the end of the process to arbitrarily play a trump card to stop a proposed project. Consent is something different.
Consent is grounded on two important words: recognition and respect. Recognition and respect for the historical and legal fact that despite having undergone centuries of colonization and genocide, Indigenous Peoples have never relinquished their right and responsibility to make decisions about their lands.
Anyone proposing to enter onto or do something with Indigenous Peoples’ lands and waters should approach them with an open heart and an open mind and seek their consent. Doing so will set the foundation for the meaningful dialogue and process of give-and-take the federal government failed to adopt during its first attempt to consult on the Trans Mountain pipeline.
Whether or not the Trans Mountain pipeline is ever built is uncertain. What is certain is that until federal and provincial governments abandon the low road of minimalist consultation and stop trying to silence Indigenous people by shouting ‘no veto’, they will continue to sow discord, opposition and distrust. Indigenous Peoples are offering them a better way forward—they should take it.
Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. Download Bruce's bio.
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