Thursday, February 13, 2020

Book Notes: Borrows and Coyle on Indigenous Title

Yesterday, for a project largely unconnected to the current protests and blockades responding to the Wet'suwet'en crisis, I was looking at The Right Relationship: Reimagining the Implementation of Historical Treaties, a 2017 book edited by John Borrows and Michael Coyle.  (See yesterday's post below).

It happens to set out, quite succinctly, that the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, establishes that states seeking to use indigenous land need to acquire "FPIC" -- "free, prior and informed consent" from the indigenous parties concerned.  

Canadian courts, however, even when advancing recognition of indigenous title in Delgamuukw, T'silqotin, and other cases, have adhered to a lesser standard, "the duty to consult and accommodate" and, along with that, the requirement for "compelling and substantial" reasons when overriding indigenous title. Compelling and substantial reasons is the standard the BC court Federal Court of Canada (correction, Feb 14) applied last week in authorizing the gas pipeline across Wet'suwet'en territory. Essentially, if I read these deep legal waters right, in Canada indigenous title is still overridden in Canadian law by provincial, let alone federal, economic objectives.  

Hence the resistance.

Follow @CmedMoore