Justice minister apologizes for comments about Indigenous veto over development projects

Hamilton Spectator

2 days ago

OTTAWA — Justice Minister Sean Fraser has apologized personally and publicly to the national chief of the Assembly of First Nations and on Wednesday attempted to do
public damage control
after saying the federal government believes its duty to consult and engage Indigenous Peoples does not mean those communities have a veto when it comes to green-lighting nation-building projects.
Fraser, sounding a chastened note, told reporters his comments a day earlier 'caused hurt and potentially eroded a very precarious trust that has been built up over many years to respect the rights of Indigenous People in this country.'
He said he should have 'rejected the premise of the question' that was asked by the Toronto Star, a day after the AFN, a national advocacy group for First Nations, warned the Carney government of its duty to seek the 'free, prior and informed consent' of Indigenous Peoples to expedite massive infrastructure projects, citing the principle enshrined in the United Nations Declaration on the Rights of Indigenous People (UNDRIP) in Canadian law and the Constitution.
The Star asked Fraser what he and Prime Minister
Mark Carney
understand the legal principle means when it comes to these projects.
The justice minister, who is a lawyer, cited international legal experts and jurisprudence, and said it entails a duty on the government to meaningfully consult, engage and accommodate Indigenous concerns, but it doesn't constitute a blanket veto power. The Star quoted the minister extensively Tuesday.
On Wednesday, Fraser tried to walk back the damage he said was done by his comments after AFN National Chief Cindy Woodhouse Nepinak reached out to him.
However, Fraser did not back off the government's position — a position that has been consistent since Canada adopted its own law to interpret the UN declaration.
'I had a call last night after National Chief Woodhouse reached out expressing her frustration and I told her unequivocally that I wanted to apologize for some of the comments,' Fraser said, telling reporters nobody in government told him to publicly apologize.
'What I should have done when faced with the question that I received was rejecting (sic) the premise of the question,' Fraser said.
'The UN declaration when it comes to free, prior and informed consent, is about establishing a process based on respect and partnership as between the Crown and Indigenous Peoples. I think sometimes the conversation falls into a frankly dangerous trope that paints a false picture of Indigenous People as being anti-development somehow.'
In fact, his Liberal caucus colleague, MP Marc Miller, a lawyer who served as Justin Trudeau's minister of Crown and Indigenous relations as well as minister of Indigenous services, told the Star
in an interview
that courts have consistently interpreted the UN declaration and Canadian law as not granting a veto.
The courts have, however, set out a clear 'pathway' for governments and companies to follow in order to meaningfully consult, engage and accommodate Indigenous communities' concerns around resource developments.
'If UNDRIP had a veto in it, it is doubtful that a number of countries, including Canada, would have signed it in the first place,' Miller told the Star's Mark Ramzy. 'Now, the process of consultation is much broader than that, and depending on the quality and the impediment on the community in question, this can effectively turn into a community being able to prevent a pipeline from going through its community and depending on the project — but that is not a veto in all cases.'
Miller said court decisions have established 'a road map for engagement with communities that is relatively sophisticated at this point. And the question for the federal government, is does it observe it or does it decide to cut corners? It cuts corners, it will find out, we will find out quite quickly through the court system that that will actually delay projects. So let's get it right the first time.'
But, Miller added, 'to imply that UNDRIP in all cases gives a veto to every single community is to be inaccurate on what UNDRIP actually requires governments and states in question to do.'
Fraser said essentially the same thing a day earlier, pointing to 'international commentary and the limited jurisprudence' that has interpreted the UN declaration to date. He said those indicate 'we do need to fully engage and to the extent there's a potential to have a more direct impact on Aboriginal and treaty rights, it demands a higher degree of engagement.' But, he said, experts have suggested 'that is not necessarily a blanket veto power.'
'But of course, we're in new territory here,' he said. 'Over the course of the next generation, I expect the courts are going to do some significant work, but hopefully a lot of that work is actually going to be done between governments and Indigenous Peoples themselves through engagement and conversations.'
Fraser's initial comments were the first clear statement of how Carney's government will interpret the UN declaration and Canadian law when it comes to consulting Inuit, First Nations and Métis people about projects on lands over which they may hold treaty or constitutional land claims.
It stood in contrast to how many Indigenous leaders view the Crown's legal obligation to consult them, many of whom argue it grants the power to consent to or deny economic development proposals.
Canada adopted legislation and an action plan to implement the UN declaration under then-justice minister David Lametti, who is now principal secretary to Carney.
The AFN had warned Carney in a letter released Monday of his legal obligations to consult and obtain the consent of affected communities when drawing up the legislation to fast-track projects, and when deciding on which projects will be designated 'nation-building' and qualify for expedited approvals.
Without the 'free, prior and informed consent' of those communities, the AFN warned Carney's plan will be mired in conflict and litigation.
On Monday, Woodhouse Nepinak told The Canadian Press that it is 'disheartening' when politicians make such comments, and said the government has made a series of missteps since her Thursday meeting with Carney.
'When the prime minister's trying to start a relationship with First Nations in a good way, it's disheartening when comments are made later, twice now actually this week,' she said, citing Crown-Indigenous Relations Minister Rebecca Alty saying that work to fill the First Nations infrastructure gap won't qualify for Ottawa's push to fast-track what it calls 'nation-building' projects.
Woodhouse Nepinak said she was then taken aback by Fraser's comments.
'He called to apologize,' she said. 'He needs to apologize to First Nations for those comments.'