RECONCILABLE DIFFERENCES

It has long been apparent that Climate Change and Indigenous Reconciliation will define Justin Trudeau’s legacy.  Little did he or we know that those two issues would converge in a moment of truth just 91 days into the mandate of a perilous Minority government.

The current crisis that has precipitated a full shut down the country’s rail system brings to a head the full complement of thorny questions that surround the task of reconciliation with Canada’s indigenous peoples and our colonial past.  No lasting or even short-term solution to the impasse with the Wet’suwat’en First Nation over the Coastal Gas Link pipeline is possible without a precedent setting resolution of issues relating to land claims, sovereignty and effective self-government.  As if that reality needed complication, all of that must be achieved against a backdrop of intersectionality with critical environmental issues that will dramatically impact national and regional economic concerns.  There is every chance that the next few weeks will be the period in which the Trudeau government defines its place in history.

The facts of this situation are so fraught that is sounds like a Law School exam question.  The land at issue in Northern BC is claimed by the Wet’suwat’en as traditional territory, and is not subject of any treaty, so is properly characterized as “unceded” land.  So what of unceded land?  Does unceded land constitute Crown land, or is it land to which no claim of title stronger than that of the traditional users of that land?  The law is unclear on this point; all that has been conceded to date is that it is territory to which an obligation to consult arises with respect to development plans.  Even this concession seems a little modest in the context of an era of an expressed commitment to reconciliation.  Might this not, in the spirit of reconciliation, be the circumstances in which the obligation is to gain consent rather than just consult?

If only that were the sole question to answer here.  Even if we concede a right to consent, the issues surrounding the Wet’suwat’en and Coastal Gas link would remain unresolved.  The Colonial imposition of electoral democracy on top of a traditional hereditary governance model leaves no clarity as to how or from whom to seek consent.  Most elected Wet’suwat’en leaders have signed on to the development, while most hereditary leaders have not.  Not surprisingly, regulators and Coastal itself have accepted the participation of the elected Wet’suwat’en leaders as determinative of consent, but that can be justified as much to a cultural predisposition to conventional democratic structures as to the obvious preference for a favourable outcome.  That being said, approval of commercial arrangements through democratic institutions is hardly a pre-requisite for doing business with Canadian enterprises; I am pretty sure that the Saudi citizenry were not consulted by referendum before we shipped personnel carriers to the House of Saud.  We are only invoking principle here because we are confronted with two competing claims to representative authority.

And even if the Wet’suwat’en were to be convinced to sign on to Coastal Gas Link with one voice, the project would still face a daunting challenge.  Much of the non-indigenous support for the rail blockades has coalesced around the Wet’suwat’en not as indigenous peoples whose sovereignty and land rights must be respected but in their commonly related but distinct identity as “land defenders”.  It would at this point be naïve to expect that the non-indigenous allies active in the current protest would be any more supportive of the sovereignty of the Wet’suwat’en than they have been to the sovereignty of Canadian courts where that sovereignty is exercised to allow the construction of pipelines.

But first things first: in this fraught situation, what does reconciliation look like?  That part seems fairly straightforward.  In the absence of a treaty with respect to traditional territorial lands, the standard for discharging the recognized obligation to consult with respect to development should require a level of rigour that is effectively one of consent, as has already been demonstrated in practice by Coastal’s laudable choice to enter into benefit agreements with so many affected First Nations.  Notwithstanding Canadian inclinations toward more familiar governance models, the existence and authority of traditional governance structures must be granted equal weight with expressions of representative authority imposed by or otherwise modeled after Canadian structures.  In the face of opposition from any established representative authority, a bona fide commitment to reconciliation dictates that the project not cross the unceded traditional territory.

If this principle is to be retrospectively articulated and applied in the context of the Coastal Gas project, Coastal should be entitled to recover its costs in relying upon the process that it has followed to date.  These costs would include the recovery from the federal government of money expended by it in furtherance of the project since December 31st when the court’s affirmed their right to proceed with the project.  Coastal’s entitlement to recovery of these costs should apply whether they decide to re-route and complete the pipeline or abandon the project altogether.

This solution will not satisfy everyone, and in fact may satisfy no one.  Opponents of pipelines will perhaps be heartened by the further demonstration of the effectiveness of the obligation of reconciliation as an impediment to resource projects but will also be disappointed that the government has nonetheless reaffirmed its conceptual support for resource development.  The business community and the West will be disappointed to see a higher approval threshold for resource projects but can take solace in the recognition once again of an obligation to compensate project sponsors that proceed in good faith.  Indigenous peoples would seem to be the best served in this solution but might/should perhaps see some cause for concern in the predicament in which it leaves them in moving their communities forward economically without a ready means of resolving the governance ambiguities that they face.  All will be left with work to do, but no one will have been unheard.

What does reconciliation look like?  This.

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