Letter to the Editor

Duty to Consult no Longer Beneficial to First Nations In B.C.

The Duty to Consult (DTC) initiative as set out by the SCOC rulings (2004-2005) was an historical achievement by Indigenous Peoples of Canada. First Nations were to be “advised” as to any potential infringements of their rights when entering their traditional territories. The manner in which it was implemented serves to diminish its benefits rendering it ineffective and bereft of its intended purpose.

Aboriginal Rights are “community rights” – and not so much individual protester rights. First Nation rights may include trap lines, hunting and fishing, food/water gathering, burial sites, spiritual/sacred sites, land disturbances and freedom of movement across their territories. Rights may also include economic opportunities on their traditional lands. The consultation process does not distinguish between Treaty and non-Treaty lands. The catch-phrase “inadequate consultation” seldom includes any specific or defined issue which is not being properly consulted. A total of 93 First Nation bands in B.C. have endorsed three pipeline projects: NG, TMX and CGL – so how were they not adequately consulted? The consultation process with First Nations is essentially an information session with a mutual objective to accommodate on relevant issues through discussions in good faith. Examples of historical issues would be the location of a winter road, noise from aircraft when flying over traditional hunting and trapping areas and employment opportunities. The DTC process does not determine if a project is or is not in the public interest. In any consultation the distinction between “traditional” lands and “Crown Title” must be made. The Canadian high courts which ruled on the TMX never considered the intervener status of biased governments, environmental groups or First Nation opposition bands which could be viewed as the unreliable witness, irrelevant testimony and hearsay that might otherwise be banned from many normal judicial processes.

The marine shipping aspect with regards to mechanical engine-propeller vibration as an effect on killer whales’ communications shows the bias in the consultation process. This issue is “cargo-based” as the only vessel expansion under review is one that carries an Alberta oilsands product through the TMX pipeline.

The cancellation of the Northern Gateway pipeline and the oil tanker ban (Bill C-48) may be “infringements” of First Nations rights since they prohibit energy development on their lands even after First Nations have pursued and endorsed the project.

The UN must gain universal acceptance from First Nations before speaking on their behalf through the UNDRIP protocol since such an initiative may not be directed at the desired economic prosperity of remote native bands in northern B.C. The DTC First Nations initiative in B.C. was intended to benefit Aboriginal people. The process has become completely contaminated by special interest groups and encumbered by discussions on irrelevant issues. It has become a true Canadian failure in many respects and is unlikely to be effective in the future.

Keith Metcalfe, P.Eng., P.Geo.