After the Federal Court's decision to stop construction of the TransMountain pipeline from Alberta to the Pacific Coast, there is one lesson that ought to be seized upon. Settling indigenous land and self-government issues is simply the best way to pursue economic growth, infrastructure development, and industrial megaprojects in Canada.
Premier Rachel Notley expresses a view that seems to be a consensus from the Fraser Institute to 24 Sussex: consultation with First Nations about land and self-government is something to be endured when Canada has a pipeline or other project it wants to build on contested territory, not something to be undertaken in good faith as a moral or legal or historical obligation.
Meaningful consultation with parties affected by the pipeline should accommodate their concerns, not give them veto power over the project, she said. “I reject a scenario that has us talking until everybody says ‘yes.’ That’s not how it can work.”
Sorry, it's true that the courts only mandates "consultation," but given the meaninglessness Canada has made of consultation, there really is a de facto veto in place, and governments had better accommodate to that.
It was almost fifteen years ago --2004 -- that the Supreme Court underlined the indigenous interest in the use of contested lands, and the obligation of governments to consult the interested partners. How has that been going? On the big issues, even the big principles, hardly anywhere. Instead, governments conceive ot the projects that interest them, and then try to calculate what coercion will suffice to get some First Nations to make some kind of grudging accommodation.
With TransMountain, we see the result. First Nations will participate in meaningful consultation on Canada's big issues when Canada participates in meaningful consultation on the First Nations' big issues. Until then, Canada and Alberta had better forget about pipelines to tidewater.
It's not a mystery what First Nations require, whether it's in BC where the land has never been ceded, or in other parts of the country where the treaties that were negotiated face-to-face with Indigenous leaders were always framed as sharing agreements not surrenders (no matter what the written text filed in Ottawa says). First Nations require self-government within Canada. They need a territorial base. And they need to be able to draw revenues -- taxation, royalties, business investments, whatever -- sufficient to support the people and government of the First Nation concerned.
Accept that, and make it happen, and indigenous people would shift from being the most impoverished demographic in the country to a prosperous and self-sufficient one. And with the kind of serious interest in land and its revenues, First Nations would no longer have an incentive to seek a veto over economic development -- as it would suddenly be in their interest as much as Canada's.
Many environmentalists do have an interest in an absolute prohibition of new pipelines and other infrastructure. But the First Nations' core interest is avoiding having their land and their prosperity stolen from them yet again. The moment we stop threatening that, the moment Canada treats First Nations as co-owners of land and resources, then pipelines and other infrastructure projects will be discussed on their merits.
The media are full of talk about appeals of the Federal Court decision, or changes to the law, or a new round of "consultations" on pipeline details. The only people who are pointing to the real solution -- progress on land, self-government, and a revenue base -- are the First Nations themselves. They have been ready to deal for centuries.
