‘Fair and Equitable Compensation’ Might Address Indigenous Resistance

The federal government’s embrace of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP)—and common law prohibitions against the state seizing property without fair compensation—could help resolve ongoing standoffs between energy infrastructure and Indigenous communities, says former Grand Chief of the First Nations Summit, Ed John.

Indigenous Affairs Minister Carolyn Bennett told the United Nations in an address over a year ago that Canada is “now a full supporter, without qualification” of the UN declaration. But neither the government nor most Canadians have fully realized its implications, the Globe and Mail’s Justine Hunter writes on the 20th anniversary of the Supreme Court of Canada’s landmark Delgamuukw ruling.

In Delgamuukw, issued on December 11, 1997, “the Supreme Court found that Indigenous title exists, and that it includes the right to choose the uses of land,” Hunter recalls. “It acknowledged that the Crown may need to infringe on Indigenous rights, but set down limits: Even in cases of minor infringement, ‘this consultation must be in good faith, and with the intention of substantially addressing the concerns of Aboriginal peoples whose lands are at issue.’”

In other words, John told Hunter in an interview, “the court determined this was a legal interest in land, this Aboriginal title.”

That finding, in turn, triggers an important overlooked element in UNDRIP, John asserted. Citing the Declaration, he observes that “Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair, and equitable compensation, for lands, territories, and resources which have been confiscated, taken, occupied, used, or damaged without their free, prior, and informed consent.”

“The federal government wants to see the Kinder Morgan pipeline expansion built despite the deep opposition of coastal First Nations,” Hunter notes. And on Monday, the B.C. government elected to continue with the construction of the Site C dam, “in opposition to the West Moberly and the Prophet River First Nations, who are threatening to sue for infringement of their treaty rights if the dam continues.”

“A way forward,” she writes, “is spelled out in UNDRIP,” and the longstanding legal principle of just compensation for expropriated property. “Both Prime Minister Justin Trudeau and B.C. Premier John Horgan have pledged to implement UNDRIP. If they proceed to press ahead with an oil pipeline or a hydroelectric dam without consent, it seems they are obligated to open this door to redress.”

Any compensation mandated by UNDRIP would, however, be expected to add significantly to the costs of the projects involved.