Tom Mulcair served as leader of the federal New Democratic Party from 2012 to 2017. He is a political commentator for CTV News and a columnist for CTVNews.ca.
The federal government’s major projects steamroller is about to flatten timelines. It could also run roughshod over everything from Indigenous rights and human health to water quality and migratory birds.
So far, the public appears very much on side with this rapid development agenda. But how much acceleration is too much? Will unbridled development, from mines in southern Quebec to offshore oil drilling in the Arctic Ocean, compromise the rights of future generations?
I was recently invited to take part in the annual Regent Debate organized by the C.D. Howe Institute. I love debates and this one had as its theme a very timely question about the current federal Indigenous consultation framework and whether it is an impediment to economic prosperity.
As you might expect, I argued against the proposition. The debate itself was truly informative. Two of the participants, Tabatha Bull and Crystal Smith are highly respected First Nations women who argued from different sides.
Their deep mutual respect was evident, and I think that’s one of the beauties of a formal debate: participants invariably show a great deal of deference for the opposing point of view while staking out their own position. It’s a respectfulness that helps the core issues come through to those observing.
Tabatha Bull and I were on the same side but it was clear from the start that there was agreement among all of us about the frustratingly glacial pace of the current processes.
Sonya Savage, a former Alberta environment minister and I (a former Quebec environment minister) rounded out the field from the political side. Having lived them firsthand, we both agreed on the need to remove as many bureaucratic hurdles as possible. Where we disagreed was on shortening the Indigenous consultation with strict timelines imposed from outside.
In my view we are talking about a relationship between the Crown and First Nations, Inuit and Métis leadership. And in any successful relationship, one side doesn’t get to dictate the terms to the other.
It’s important to point out that no one in the debate questioned the constitutional aspect of the duty to consult -- that wasn’t on the table. Where the participants diverged, each with their own examples and cases at hand, was on the process.
Sometimes it has to be ‘no’
Recent federal legislative proposals that seek to speed up the assessment process, such as Bill C-39, were of course top of mind. But the whole history of consultation, and the failure to adequately consult Indigenous peoples, was also an integral part of the discussions.
The official federal line is that they want a “regulatory process to advance projects quickly” as if approval were a foregone conclusion. Saying you want to advance assessments is one thing, that’s the obligation of means. There’s no such thing as an approval process, that would imply an obligation of result. Sometimes it has to be “no.”
Short circuiting Indigenous consultation has been the nub of the federal approach for years and time and again the feds have been upbraided by the guardians of the federal government’s legal behaviour, the Federal Court.
That court has repeatedly reminded the government that showing up with a pencil and a notepad is not consultation. The Court takes a very dim view of an approach that loads the dice. That view is not about to change even if there’s a change of legislation.
There are serious concerns among the younger generations of Indigenous Canadians about their own futures.
There are an increasingly large number of major projects where their communities have been given an equity share in large resource projects with guarantees of good jobs during the building phase and thereafter, with a share in the revenues. That appears to be the way of the future with those communities being the decision makers.
A recent case involving the Innu community of Pessamit is an interesting example of the challenges. Hydro Quebec had a major deal proposed with the leadership of the community.
There was a strict and very short timeline. Many felt that there was simply not enough time to thoroughly analyze the complex proposal and in a vote, it was defeated. The leadership was soon replaced with many younger members now in key roles.
My understanding is that the prospect of a deal is far from over if the failure to consult meaningfully can be corrected.
Right now important decisions are being taken concerning the increased development of the oilsands.
What will be the effects on an Indigenous communities like the Cree and Dene peoples of Fort Chipewyan, downstream from that enhanced development? There are already distressing signs of increased occurrences of rare cancers there.
If the authorities responsible for advising the government propose adding reverse osmosis for the effluent, to reduce health risks, will their advice be followed by the government even if there would be increased costs for the companies or will the dice be loaded again?
Canada is a signatory to the United Nations Declaration on the Rights of Indigenous Peoples that requires prior informed consent. No, that’s not a veto but it is an obligation to act fairly.
Fairness comes as a package: a process that allows those affected to speak and to be heard, it doesn’t mean tipping the scales to ensure more rapid development now, no matter the long-term damages.
Getting that balance right will determine whether Prime Minister Mark Carney’s rapid development agenda will move forward successfully or quickly become mired in social disruptions and legal challenges.
