The TransMountain Expansion Project and the Free, Prior and Informed Consent in Canada.
“They [non-Indigenous] speak a different language [...] not just, you know, English, but I’m speaking about the capacity to actually understand and truly listen. You know, the highest form of respect you can give somebody is to sit and listen.” - Indigenous Chief in Canada (Anonymous, quote from the study)
In resource governance, different actors attach different values to natural resources. The state sees economic development and jobs creation in resource extraction, while Indigenous groups living on resource-rich lands often attach cultural values to nature. With some states adopting the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which includes the concept of Free, Prior and Informed Consent (FPIC), there are questions on how to reconcile states’ goals, Indigenous priorities and stronger Indigenous rights. The Trans Mountain Expansion Project in Canada showed dissatisfaction with how the consent was granted and there are still disagreements whether the project should proceed. At the same time, Canada has recently adopted Bill C-15 which aims to incorporate UNDRIP into Canadian law. There are questions on what FPIC should look like in practice and if withdrawing consent gives First Nations a right to veto. My dissertation used qualitative analysis of semi-structured interviews conducted with Indigenous and non-Indigenous lawyers, policy experts and First Nations spokespeople to answer those questions.
My research question was: How can the rights of Indigenous peoples be reconciled with the Canadian jurisdiction and development agenda in natural resource projects?
1. Clash of values?
While Indigenous groups do not always oppose development, there are examples where indigeneity was constructed in opposition to development, exploitation and colonialism (Matute, 2021). The now-famous Indigenous concept (mainly found in Latin America) of Buen Vivir (‘Living Well’ or ‘Good Life’) stands in opposition to ‘Living Better’, which is based on the concept of constant progress and competition within a society, which leaves some groups ‘Living Badly’ (Acosta, 2015).
Those distinct Indigenous values and worldviews can sometimes collide with the goals of the state, which usually centre around economic development and job creation. Nonetheless, it is important to remember that Indigenous communities vary around the world and that this might not be true for all groups.
2. The state and natural resources
UNDRIP’s recognition of the right to self-determination reminds the states how crucial it is to respect Indigenous jurisdiction and institutions. Decisions over Indigenous lands should be made through Indigenous institutions in order to support the core right to self-determination. On the other hand, Indigenous groups reside within nation-states that have their own jurisdiction. This is a major tension as quite often decisions and goals of the state collide with the values and plans of Indigenous groups.
3. Free, Prior and Informed Consent
The concept of Free, Prior and Informed Consent was developed to resolve the tension between Indigenous self-determination and the sovereignty of the state. FPIC is one of the main elements of the Declaration in which Indigenous communities can exercise their right to self-determination (Szablowski, 2010, Papillon and Rodon, 2020). However, questions arise about the way FPIC can be applied in practice when there are competing goals of societies and states that claim rights to natural resources.
According to UNDRIP, the state needs to seek Free, Prior and Informed Consent from Indigenous peoples before approving projects conducted on their lands (United Nations, 2021).
There is no universal definition of the elements of the Free, Prior and Informed Consent (Barelli, 2018). Interpretations of different bodies and people such as James Anaya, the UN Special Rapporteur on the Rights of Indigenous Peoples, are often treated as standard interpretations of the FPIC elements. Barelli (2018) has brought together those most used definitions on FPIC: free means that the participant is not coerced or pressured, prior means that consultation has to precede a project or an action that can impact those communities, informed means that people concerned are aware of any effects and risks the projects can have on their land, culture and nature, and of the size, pace, scope and reversibility of the proposed project (ibid.).
4. The right to veto?
While the term veto is not used in the declaration (United Nations, 2021), the concept of FPIC can still be interpreted as limiting a state’s control over natural resources (Szablowski, 2010). This tension is tightly linked to the clash of values explained earlier: governments have feared that granting stronger rights to Indigenous groups could endanger the economic development of the state. An interesting example is resource-rich Canada, where the implementation of UNDRIP was somewhat feared because of how FPIC could potentially grant veto rights to Indigenous groups.
5. Indigenous Peoples in Canada
After Europeans came to North America, Aboriginal peoples suffered colonial practices such as reserves and residential schools creation to assimilate and control communities (Parrott, 2020b). The difficult history of the loss of land, reduced access to food and segregation had devastating effects on Indigenous peoples. Canada is now trying to advance reconciliation to renew the relationship with Indigenous peoples (Government of Canada, 2021).
6. The Duty to Consult
Currently, the state has a legal duty to consult Indigenous communities (Department of Justice Canada, 2020) under section 35 of the Constitution Act 1982, when a project takes place on Indigenous lands and affects the community. However, Papillon and Rodon (2020) stress that the Canadian ‘duty to consult’ does not recognise Indigenous distinctive decision-making authority, where Indigenous ways of expressing consent are important. Some First Nations of Canada have found ways around the law to assert their right to self-determination, for example, the Cree Nation has created its own mining policy and the Squamish Nation and the Tsleil-Waututh Nation have created community-driven impact assessments (Papillon and Rodon, 2020). Nonetheless, often there is still a lack of agreement on what the consultation process should entail in practice (Martin and Bradshaw, 2018).
7. UNDRIP and FPIC in Canada
Canada initially opposed UNDRIP in 2007 fearing that FPIC could be interpreted as an Indigenous veto. Given that a big share of the Canadian economy relies on natural resources (16,9% of Canadian nominal GDP in 2019) (Government of Canada, 2020a), the government feared that FPIC would make natural resource projects more difficult.
In 2016, Romeo Saganash, an Indigenous Member of Parliament, introduced Bill C-262 that would lead to the implementation of UNDRIP into Canadian law, but in 2019 the senate delayed reviewing of the bill because there was no agreement on whether consent means veto and the bill was dropped (ibid.). In 2019, the government of British Columbia passed UNDRIP, however, some laws concerning First Nations are mostly managed on a federal level. In 2020 the federal government introduced Bill C-15 as a second attempt to introduce the UNDRIP into Canadian law, stating that FPIC would not mean a veto (Department of Justice Canada, 2020). Bill C-15 was passed on May 25th 2021. Now Canada needs to prepare an action plan to achieve the objectives of the Declaration on a state level (Open Parliament, 2021).
8. The Trans Mountain Expansion Project and consultation
The Trans Mountain Expansion Project is an interesting example to analyse in order to explore the notion of veto versus consent and people’s expectations from the consultation process.
The Trans Mountain Expansion (TMX) project aims to twin an existing pipeline built in 1953 and increase its capacity from 300,000 barrels per day to 890,000 barrels per day (Canada, 2020). As seen in figure 1, the pipeline runs from Edmonton in Alberta to Burnaby in British Columbia (Canada, 2020). The expansion project was first owned by Kinder Morgan, an energy infrastructure company based in North America. The projects faced delays as the court ruled in favour of the Tsleil-Waututh Nation that proved that the Impact Assessment presented to them was misleading – it did not take into account the tanker traffic that would negatively impact the Tsleil-Waututh community (Bennett, 2017). As a result, the National Energy Board had to consult with the communities again (Zussman, 2020). Local resistance and increasing project costs led to Kinder Morgan’s decision to leave the project (Lequesne, 2019) which in 2018 was bought by a state-owned company, the Trans Mountain Corporation (Kinder Morgan, 2018). After the second round of consultation, with 129 communities consulted (Government of Canada, 2020b), the court ruling was won by the Trans Mountain Corporation and the project got a green light. Their lawyer explained that it was partly because some communities have taken a veto position against the project while the law does not offer that right (Smart, 2019).
It is an interesting case study, as some communities still strongly oppose the pipeline, stating that they “will never provide their collective free, prior and informed consent”, which can be interpreted as asserting a veto (Tiny House Warriors, 2020), while other communities are interested in buying shares in the project (Purdon and Palleja, 2019).
Legally the expansion was approved, but this does not mean that the conflict was resolved. The TMX project highlighted that people have different ideas about what consent means and what the consultation process should look like. Such misalignments only create barriers to reconciliation. There needs to be a better understanding of what FPIC should mean in practice in Canada and what a meaningful consultation process is considered to be.
9. Methodology
The study was conducted using qualitative in-depth semi-structured interviews with eleven participants. Qualitative content analysis can support the depth of analysis by being able to answer the “why” question, while quantitative analysis mostly answers the “what” question (Julien, 2008). In the case of the aforementioned confusion around FPIC, such a method can bring out new perspectives on the meaning of the elements of Free, Prior and Informed Consent as well as reasons behind the opposition to the pipeline. People invited to this study included Spokespeople of First Nations and Métis communities, Indigenous and non-Indigenous lawyers, policymakers and experts in Indigenous rights and policy. All data collected was anonymised.
10. Summary of the study results
Firstly, it is important to note that people for or against the project are not much apart from when considering their values. All participants were concerned about respecting human rights and environmental safety, the difference lies in how people felt about the TMX project’s impact on the environment and Indigenous rights. Also, it is important to mention that the results do not follow Matute (2021) findings, where Indigeneity was constructed in opposition to development. While First Nations vary in their views on resource extraction, most of this study’s participants understood the government’s push for some projects and the necessity of resource extraction. The collected results show that issues of resource extraction are often about the way the consultation and extraction are done rather than being inherently opposed to it. In the TMX case, there was also an environmental opposition because it is an oil and gas project that some find unacceptable in the climate change era.
Referring to the research question: reconciling development and Indigenous rights is not impossible, because the values of both sides are not in stark opposition, but consultation processes need to be improved.
This brings us to the analysis of issues surrounding FPIC. The results confirmed the view of Martin (2018) that the history of colonisation and exclusion makes the concept of free consent difficult to apply in practice. There were issues of pressure being put on participants also found in the literature (Raftopoulos and Short, 2019), showing that the underlying issue of socio-economic exclusion has to be improved in order to obtain a process where the consent is truly free.
Informed part of consent seemed to be one of the most pressing issues for participants. While the process did not seem to purposely hide any major risks and included Indigenous perspectives, which was an important part of informed consent (Raftopoulos and Short, 2019), the expectations from participants were higher than just a set of local risks presented to the group. Independent advisors, Indigenous-led impact assessments, more time and financial resources to review a project, incorporating global economic and climate change impacts of the projects were elements suggested by participants to improve the process.
The topic of consent often referred to broader issues of systemic exclusion. It questioned who should decide on the project and criticised the current governance structures, which are in most cases far from traditional decision-making structures. Most participants were not focusing on the veto right just for the sake of it, but some found it logical that if the project negatively affects Indigenous rights and culture, it should not be approved. This again goes back to truly recognising Indigenous rights, culture, the importance of sacred sites and traditions. It was apparent that FPIC, for Indigenous participants, was a way to include them in decision making and influence the project as a partner. These difficulties in project engagement were also recognised by Lingard (2012) who stressed the importance of a systemic approach in strengthening all rights in order to have more inclusion of First Nations. Summing up, the Free, Prior and Informed Consent is considered to be a tool of engagement rather than opposition, but there is a lack of trust and satisfaction with how the process was done.
Reconciling development and Indigenous rights is a crucial element in order to advance mutual development. The Crown-Indigenous relationship section showed how First Nations want to be partners, want to be included, listened to and respected. Working on better inclusion and understanding will build trust while improving the socio-economic situation of First Nations will empower communities to come together and stop being in the “reactive mode”. This could lead to better cooperation and satisfaction for both Canada and First Nations, but there is a need for a systemic change to fix the power imbalance in order to advance a truly Free, Prior and Informed Consent and reconcile Indigenous rights with the development agenda of the state.
11. Conclusion
Overall, some of the most important findings are that the values of both the industry and Indigenous peoples could be reconciled. Even more now because of the pressure put on the government to pursue sustainable development and fight climate change. Nonetheless, there are significant systemic issues (socio-economic exclusion, systemic and cultural racism) that influence FPIC in practice, these need to be resolved for consent to be truly free. Merely being consulted about a project seems unsatisfactory for Indigenous participants: co-decision making is crucial, however, there is still the problem of power tension between the state and First Nations – who should have a final say? There needs to be a better understanding of Indigenous concerns by non- Indigenous Canadians in order to fully grasp the reasons for disagreements. Some universal improvements to the consultation that can be applied globally are: including climate change impacts as part of the information about a project and having an iterative consultation process with more inclusion and co decision-making. There needs to be more listening, respect, trust-building and bringing communities together rather than fragmenting them during consultation. Future research in this area should focus on the ways in which “the system” could be restructured in Canada so that there is more co-decision making and First Nations with differing goals are satisfied with that structure.
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