UNDRIP and Wet’suwet’en
UNDRIP Implementation and the Wet’suwet’en By Leslie Anne St. Amour
T
he development of the Coastal Gas Link (CGL) pipeline in BC has become a flashpoint demonstrating the difficulties in resource development and achieving First Nations self-determination in Canada. It has highlighted not only the concern of lack of Indigenous consent to resource development that we have seen regularly across Canada, but also the question of who it is that can give that consent on behalf of an Indigenous community. The Indian Act band councils of the Wet’suwet’en First Nation, which are recognized by the provincial and federal governments as representing the community members involved in the dispute had given consent for the project, while the Hereditary Chiefs, that within Wet’suwet’en legal traditions would have authority over the territory over the which the dispute has arisen, have not given consent and believe that under Wet’suwet’en law, the project cannot go forward. In January of 2019, the RCMP raided camps in Wet’suwet’en and arrested community members and supporters who were limiting access by Coastal Gas Link contractors and employees to their territory. This was based upon a temporary injunction granted by the BC Superior Court in favour of CGL. In November of 2019, the BC legislature passed legislation to implement the UN Declaration on the Rights of Indigenous People (UNDRIP) called the Declaration on the Rights of Indigenous Peoples Act (the Act). In January of 2020 the RCMP set up a checkpoint monitoring 22
and regulating access to Wet’suwet’en territory, following which a BC Superior Court justice granted a permanent injunction to CGL. Feeling déjà vu? You aren’t the only one. How, after the province of British Colombia passed the aforementioned Act, could we again be seeing a check point on Wet’suwet’en territory so similar to what we saw in 2019? What does UNDRIP mean for Indigenous people in this context?
In describing the implementation of UNDRIP on its website, the province of BC made it clear that it does not view UNDRIP as creating new rights. Rather, the Act requires that the province of BC prepare and implement an action plan to achieve the objectives of UNDRIP; it requires the Minister responsible to prepare a report each year on the progress made towards implementing UNDRIP; and, it allows for the entering into agreements with Indigenous governing bodies relating to the exercise of a statutory power of decision jointly between an Indigenous governing body and the government or the consent of an Indigenous governing body before the exercise of a statutory decision making power. In the Act, "Indigenous governing body" is defined as “an entity that is authorized to act on behalf of Indigenous peoples that hold rights recognized and affirmed by section 35 of the Constitution Act, 1982;” This definition has the potential to recognize traditional Indigenous governance structures outside of the Indian Act as the rights holders in a territory. The Act allows the province to make agreements with these other governing bodies in relation to decision making powers, which will likely include the decision to approve or not approve a resource development project. However, the ability to enter into agreements with Indigenous governing bodies does not answer the question of which Indigenous bodies have the authority to enter into different types of agreements, rather it just gives the province more flexibility in who it chooses to enter into an agreement with. Businesses, the public and Indigenous Asper Centre Outlook 2020
