NDP-Green pact does not translate into First Nation veto power over energy projects in B.C.

The recently-signed four-year “confidence and supply agreement” between the Green Party and NDP in British Columbia has the potential to allow indigenous communities in the province to scuttle major energy projects. In the context of this agreement, this likely means the Kinder Morgan pipeline expansion and the Site C dam.

Jason Tockman, a researcher of indigenous studies in Washington State and a UBC alumnus, wrote a piece in the Vancouver Sun that argued that the NDP-Green agreement amounted to a form of consent requirement for indigenous communities over resource projects on their traditional territories because the agreement involves a public commitment to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). That document spoke of indigenous peoples’ right to free, prior and informed consent over projects that affect them.

The problem is Tockman almost seems to use consultation and consent interchangeably in the piece, as to almost conflate the two. They are two quite different things. The constitutional duty to consult and accommodate indigenous communities over projects that affect them is quite clear and necessary. However, it’s more about the balancing of interests, not the granting of a destabilizing veto to any party. Granting a veto over projects or government decisions to indigenous parties would create a large power imbalance and could scuttle very important energy projects.

Tockman writes that “as the UN Declaration and the Supreme Court decision instruct, B.C. should treat First Nations as partners with a shared role in decision-making.”

Of course, but that does not mean granting a destabilizing veto. Governments certainly ought to do much more to bring in indigenous communities on board in a partnership spirit, but they should not completely put them in the driver’s seat.

Then Tockman proposes that, “the province should establish—by law—that consultations with Indigenous peoples are undertaken in order to obtain their free, prior and informed consent.”

No, that’s not the purpose of the consultations according to the mandates of our Constitution. It is for governments or the third parties they delegate to meet their just and necessary constitutional obligations to those indigenous parties.

Indigenous communities in B.C. should of course demand more from this new government. However, they cannot demand what is well beyond what our constitution requires.

Let’s hope for everyone’s sake that leadership in the new B.C. government is generous with its indigenous partners—while listening to proper constitutional scholars and not taking this recent op-ed too seriously.