Impose a pipeline on Indigenous nations? Not so fast, say Indigenous rights lawyers

Pipelines, pipelines, pipelines.

Indigenous peoples came up just once during Wednesday’s French-language federal leaders’ debate, the first of two official debates before the vote, and the question was this: Would you impose a pipeline on Indigenous nations that don’t want it?

First up was Conservative Leader Pierre Poilievre, who sidestepped the question.

At the same time, there are others who will support it, Poilievre said in French, citing the cancelled Northern Gateway pipeline, claiming 80 per cent of First Nations supported it.

In that case, I think we should side with the majority and also allow businesses to pay part of their taxes directly to First Nations to combat poverty with industry and production.

NDP Leader Jagmeet Singh began to object, but he didn’t get to fully answer the question. Moderator Patrice Roy of Radio-Canada asked Poilievre and Liberal Leader Mark Carney to respond, since both are pledging to increase oil and gas production.

WATCH | Pierre Poilievre is pressed on issue of consent for pipelines:

Poilievre pressed if he would impose a pipeline without Indigenous support

During the French-language debate on Wednesday night, moderator Patrice Roy repeatedly asked Conservative Leader Pierre Poilievre whether he would impose a pipeline even if Indigenous communities and Quebec opposed the project. In response, Poilievre questioned the idea that a pipeline would receive opposition from the people of Quebec.

No, never impose, said Carney.

He went on to imply Indigenous people would support such projects under his leadership, citing his recent accord with premiers to create an energy corridor for oil, natural gas, renewable energy and critical minerals.

With that, and with a process involving First Nations chiefs, we could have a solution to this problem, he said.

And that’s an example of leadership. That’s an example of bringing leaders together to achieve a national objective.

While the debate may have had no obvious winner, those answers made one thing clear: Regardless of which party forms government, Indigenous peoples may face greater pressure to endorse resource development.

Three Indigenous rights lawyers, however, say consulting Indigenous people and accommodating their rights isn’t optional. It’s a duty rooted in Canada’s Constitution that can’t be fast-tracked.

The answer has to be an unequivocal, unequivocal no, because any other answer would be contrary to the Constitution, said Bruce McIvor, a partner at First Peoples Law in Vancouver.

You cannot impose. As a leader of the federal government, you have constitutional obligations. It’s well developed under Canadian law that you have to respect Indigenous rights.

These rights are also not some sort of obstacle to prosperity that must be overcome, said Stephen Mussell, a lawyer with Mandell Pinder LLP and citizen of the Manitoba Métis Federation.

Indigenous rights are basic human rights, he said.

This idea that they’re just something that needs to be overcome, that you can impose your will on in order to accomplish something for the greater Canadian good, seems like a bit of a problem to me.

UNDRIP and the elephant in the room

Then there is the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, which recognizes Indigenous peoples’ right to consent to development.

The previous Liberal government passed legislation implementing UNDRIP, which Poilievre voted against (new window), telling the House of Commons he was proud to oppose it. (new window)

The UN declaration is something that federal governments need to be concerned about — and this elephant in the room, which is the idea of consent, said Anishinaabe lawyer Sara Mainville, managing partner of JFK Law in Toronto.

Indigenous peoples haven’t received much attention — except in connection with natural resource or military development — in a campaign otherwise dominated by U.S. relations, the economy and affordability.

Mainville decried that omission, saying she’ll be looking for more discussion of Indigenous peoples when the leaders square off in English on Thursday.

My clients are really concerned about all the hard work that they’ve been doing, she said.

In Calgary on April 9, Carney said any project coming out of Alberta will need the consent of the provinces and Indigenous people, and Mainville said his answer Wednesday about process could be a good start, so long as the process doesn’t manufacture consent.

But McIvor said Poilievre’s position that majority rules is not how Canada’s Constitution works. The will of the majority cannot cancel a severely impacted Indigenous community’s rights, he said.

That’s the type of divide and conquer approach Indigenous people have seen all too often from government.

After the debate, prompted by Radio-Canada’s Espaces autochone (new window)s (new window), Bloc Québécois Leader Yves-François Blanchet addressed the lack of questions about Indigenous issues.

How is it that, in the context of negotiations with the United States … no one has said: Where are the Indigenous nations around the table? It hasn’t been raised, he said.

“They are nations in their own right, with a right to self-determination, that could be valuable allies in a negotiation with the United States.’

Polls suggest the race has narrowed to a two-way race between the Liberals and Conservatives, with the Bloc and NDP leaders pitching Francophone voters on the need to send a minority government to the House of Commons.

The English debate is Thursday at 7 p.m. ET. (new window) It will be offered in the following Indigenous languages: Plains Cree (Y dialect), Inuktitut (South Baffin dialect) and Ojibway (Western dialect).

This article is republished from RCI.