Why is the consultation stage so important in developing a project? Our collaborator Isabelle Picard takes an overview of the issue, in light of the history of the rights of indigenous peoples.
Posted at 1:00 p.m.
I was listening to the show Midi Info on the airwaves of ICI Première on Tuesday when the CEO of Northvolt North America, Paolo Cerruti, affirmed that the main reason why Ottawa has not yet paid anything of the billions promised for the construction and production of the manufacturing plant of batteries is linked to consultation with First Nations, a statement that seemed to disconcert host Alec Castonguay a little.
Indeed, few people know that “the Crown has an obligation to consult and, where appropriate, accommodate Indigenous groups when considering measures likely to have a detrimental effect on Aboriginal rights or arising from treaties, established or potential.” “This obligation arises from the honor of the Crown and section 35 of the Canadian Constitution Act, 1982which recognizes and affirms Aboriginal and treaty rights. »
However, the Crown, in this case, is the federal, territorial and provincial governments, including Quebec. This statement, taken from the website of the Department of Crown-Indigenous Relations and Northern Affairs Canada, is further reaffirmed by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) adopted in 2017 by the Canadian government. We will come back to this.
The problem is that in 1982, no precise definition of the words “consultation” and “accommodation” was given. Some governments and businesses believed that a phone call or letter amounted to consultation when implementing a project on treaty, claimed or ancestral Indigenous lands. We have seen many examples of this practice in recent history.
Several communities and First Nations have had to fight in court to have this right to consultation recognized, confirmed five times by the Supreme Court of Canada, notably in a case against Rio Tinto Alcan.
Today there is case law, and the concepts of consultation and accommodation are better defined. We know that the absence of serious consultation can have direct impacts on a project, consequences which can range from a return to the consultation table to the cancellation of a project. Remember the Canadian government’s Trans Mountain pipeline expansion project? On August 30, 2018, the Federal Court of Appeal overturned the order and certificate that allowed the project to move forward, in part due to inadequate consultation with Indigenous peoples. Environmental assessments had to be resumed and the government had to “correct its defects”.
A veto?
The National Assembly unanimously adopted in 2019 a motion which aims to recognize the principles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which precisely highlights the rights of Indigenous people to free and informed consent before the projects that concern them. The following year, however, Premier Legault declared that his government would refuse to implement the declaration in its entirety, citing “the integrity of Quebec territory” and suggesting that he would not want his government to “find itself in a situation where we would give a right of veto over all of Quebec’s economic projects.” However, a consultation is not a right of veto.
Rather, the consultation aims to ensure the sustainability of resources, access to water, fauna and flora, as well as to protect the rights of First Nations, Inuit and Métis people. And no, these consultations do not always result in financial compensation, on the contrary.
In the case of the Trans Mountain pipeline, its expansion as it was proposed at the time could, for example, have had an effect on the migratory patterns of animals living on the territory, and therefore on the lifestyles of Aboriginal people, in no longer restrict access to the territory. Accommodations have been found in this regard.
Justice as a last resort
In the event that a community or nation judges that the obligation to consult and accommodate properly has not been respected, Indigenous people can take legal action to assert their rights.
In Quebec, the Innu of Uashat mak Mani-Utenam took this route as part of the construction of a Hydro-Québec electrical line between the Arnaud substation and the Aluminerie Alouette, while Quebec had not respected its obligation to consult and accommodate them. In this specific case, the Superior Court asked the parties to resume the consultation process. This legal process lasted eight years in total. It is certainly not simple, in addition to being expensive for communities with dire needs.
In the case of Northvolt, the Kanien’kehá:ka (Mohawks) of Kahnawake, who have filed a possible appeal in Superior Court, say they are “the guardians of the Northvolt project area since time immemorial”, want us to respects their rights and, above all, the territory and its ecosystem. However, hundreds of hectares of wetlands have already been destroyed. For them, Quebec is “selling the environment” in addition to evading the processes supposed to protect it, in this case the BAPE.
Some will see this obligation to consult as a stick in a wheel or a pebble in a shoe. However, taking the time to talk to each other, to find solutions to protect the environment while thinking about the next seven generations, about what we will leave them (or not, by dint of eating into their future), is essential.
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