Duty to consult, UN Declaration on the Rights of Indigenous Peoples seriously eroding property rights

By Brian Giesbrecht

The case of a frustrated pub owner on Hornby Island, B.C., might be a preview of what is to come if the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) becomes law in the rest of Canada.

UNDRIP was adopted by B.C. in 2019. It remains an aspirational document elsewhere in Canada, but the Trudeau government is pushing hard to enact it into law. A brief look at the Hornby Island case might give landowners some idea of what to expect in a UNDRIP future.

Briefly put, ancient human remains were found on the pub owner’s property when he was attempting some construction. A nearby First Nation claimed the remains were on its traditional territory and were its “sacred” property. Construction has been halted indefinitely while the case winds its way through the political and legal process. The pub owner is stymied and remains a helpless pawn while all of this plays out.

“Sacred bone claims alone have the potential to have a serious impact on property rights, pipeline projects and resource development nationally.”

Expect that from now on, versions of this scenario will repeat itself throughout the country.

How often will situations like this arise?

Consider first the fact that virtually all of Canada is someone’s claimed traditional territory. (In fact, there are so many overlapping claims by various First Nations that much of Canada is claimed many times over.) Then consider the fact that most of Canada’s Indigenous people were semi-nomadic. Burials took place wherever a group of people happened to be at the time. And those burials took place over thousands of years. Suppose every bone is sacred and potentially the subject of a legal claim. In that case, it can be seen that sacred bone claims alone have the potential to have a serious impact on property rights, pipeline projects and resource development nationally.

Sights of Indigenous significance  

In fact — even without formal recognition of UNDRIP — there is already a virtual “sacred artifact” industry going strong in Canada. The Trudeau government has made reconciliation a priority. As part of that policy, Aboriginal construction monitors identify sites of Indigenous significance (SIS). If those sites (which can consist of a few bones) are found on Crown land slated for development, projects can be halted indefinitely. If found on private property, owners can be prevented from making use of their own land. There are already lawyers who are skilled in what is now viewed as a new business opportunity.

This is not to imply that all such claims are simply money grabs. Clearly, First Nations have very legitimate reasons to honour their history and cherish the past. Landowners should work with First Nations on all legitimate cases to find compromises that will respect both the rights of the First Nations and landowners. However, some enterprising Indigenous and non-Indigenous people are pursuing some of these “sacred bones” cases purely for monetary or political benefit.

The sacred bone business has, in effect, become one of the many sub-industries in what has been referred to as the “Indian Industry.” And where did the term Indian Industry come from? Frances Widdowson called it the “Aboriginal Industry” in Disrobing the Aboriginal Industry in 2008. Indigenous author Calvin Helin used the term Indian Industry in his important book Dances With Dependency in 2007. But the term has been around for many years and has been in regular use by both Indigenous and non-Indigenous insiders. It is not meant as a pejorative term; it is a simple statement of fact.

What is the Indian Industry? Widdowson, and writers like Tom Flanagan, describe how Indigenous leaders use a combination of lawfare and politics to extract money from the federal government. It is the business model that has been in constant use by Indigenous leaders for generations. Political demands and legal challenges are used to extract money in the form of transfer payments, grants, compensation for alleged historical grievances, or other methods. The key is that nothing of value is produced and offered for sale. Instead, grievances are used to demand money from others. Many of those who profit most from the Indian Industry are not even Indigenous.

“If sites of Indigenous significance are found on private property, owners can be prevented from making use of their own land.”

This is not to imply that all Indigenous communities adopt this business model. There are some well-known First Nations, like Chief Clarence Louie’s Osoyoos band, that have built productive and self-sustaining local businesses that serve their communities well. But some First Nations are what Flanagan refers to as “extractive,” and Widdowson calls “rentierist.” In plain terms, they produce nothing but rely on various methods to extract money from the federal government (i.e. taxpayers).

Profiting from the duty to consult

This is also not to imply that Indigenous people, generally, adopt this extractive business model. A growing number of Indigenous people who compete successfully in the job market and economic sphere attest that hard work and creativity are values inherent in any culture. However, this does not take away from the fact that some First Nations insist on employing the extractive business model.

The Indian Industry got a huge boost in 2004 with the Haida Nation case. The Supreme Court literally invented a “duty to consult” in favour of all First Nations. From that time forward, First Nations could claim a financial interest in Crown land that was anywhere near their communities by claiming it as part of their traditional land or territory. Most of British Columbia — where treaties were not part of their history — was particularly impacted. However, even the huge area between Lake Superior and the Rocky Mountains covered by treaties immediately saw many duty to consult cases launched.

It should be noted that each of the numbered treaties specifically gave Indigenous people the right to hunt and fish on unoccupied Crown land — but only until that land was needed for settlement or development. The Supreme Court virtually rewrote all of the treaties. These duty to consult cases have become a money-maker for select First Nations entrepreneurs but generally a huge drag on Canadian resource development.

An interesting aside is that retired Supreme Court Justice, Alberta’s Jack Major, expressed his astonishment that the duty to consult he had helped to develop while on the Supreme Court had become virtually a growth industry. He had assumed that duty to consult was simply a common-sense courtesy to First Nations and he had no idea it would in effect become a major sub-industry (my words) of the Indian Industry.

The duty to consult cases received a further boost when former Attorney General and Justice Minister Jody Wilson-Raybould’s Practice Directive was adopted by the Trudeau government. Simply put, in every other area of the law, the pursuit of justice is the goal of the federal Department of Justice. However, when dealing with Indigenous claims, the pursuit of justice gives way to a pursuit of reconciliation. The practical effect of this is that all claims are heavily tilted in favour of the Indigenous claimants. The losers in all of this are the resource developers, landowners and taxpayers.

First Nations acquire quasiproperty right worth billions

But the fact that duty to consult cases have become a growth industry for extractive First Nations (and the legal profession) should come as no surprise. It is a way money can be made. And with the Haida Nation line of cases, First Nations can now tap corporations and individual landowners as well as the federal government.

But the die had been cast for duty to consult, sacred bones and all of the creative new UNDRIP type of cases in 1982. That is when our Constitution was being written and when all of the premiers were suddenly confronted with Section 35, something none of them wanted. They were adamant that they wanted no new Indigenous law created because some members of the group foresaw what is happening today with duty to consult and UNDRIP cases. In fact, Alberta Premier Peter Lougheed absolutely refused to sign. Only when he was assured by Prime Minister Pierre Trudeau and the Indigenous representatives that the inclusion of the word “existing” would guarantee that the Supreme Court would create no new Indigenous law did he and the others reluctantly sign.

He and the rest were snookered. It took little time for an activist Supreme Court to invent a brand new Indigenous law — a law that not only was the opposite of what the Indigenous law had clearly been for 100 years, but a law that was the opposite of what every one of the seven numbered treaties (signed between 1871 and 1877) stipulated. Instead of First Nations having the right to use unoccupied Crown land until it was needed for settlement or development, First Nations had now acquired a quasi-property right that was worth billions.

It is not clear how far duty to consult will be taken. However, some of Canada’s most expensive law firms now employ highly paid, expert lawyers who can be expected to take it as far as they can. Many of the judges come from those law firms.

“Claims are heavily tilted in favour of Indigenous claimants. The losers in all of this are the resource developers, landowners and taxpayers.”

I am not imputing fault to either First Nations politicians and businesspeople, or lawyers for taking advantage of what are lucrative business opportunities by making full use of all political and legal options made available by the Indian Industry. I am suggesting that ultimately the Indian Industry benefits the monied class — Indigenous and non-Indigenous — but prevents the large underclass of marginalized and dependent Indigenous people from advancing. They stay where they are. Just as important, duty to consult and UNDRIP cases are seriously eroding property rights and crippling resource development nationally.

UNDRIP enforced aggressively at the expense of property rights

It is not possible to say how far UNDRIP cases will be taken. It is clear that the same politicians who are insisting that UNDRIP become law do not have any clear idea what will happen if it does. UNDRIP is a “pig in a poke.”

Canadians are being asked to take a transformational leap into the unknown. However, the Hornby example of the sacred bones type of cases is an indication that we are at the beginning of years of political and judicial claims that will severely impact resource developers, pipelines, landowners and taxpayers. The best guess is that UNDRIP litigation will become a permanent feature in the life of this country.

Because UNDRIP is already central to the federal government’s Indigenous policy, it is not clear that an immediate passage of UNDRIP into federal law would make that much of an immediate difference in practice. However, if UNDRIP does become law and a new federal government takes power in the future, that new government will be virtually powerless to reverse the steady progress of UNDRIP cases.

Meanwhile, the Supreme Court track record is clear. The Haida and Tsilhqot’in Nation cases are strong evidence that UNDRIP cases will be enforced broadly and aggressively at the expense of property rights, the treasury, or even the very concept of Crown sovereignty.

What this likely means overall is a dilution of property rights and the continuing suppression of resource development in Canada. It also spells uncertainty for developers, pipelines and landowners.

The reconciliation-UNDRIP agenda appears to be a winner for the Trudeau Liberals. They can claim to be helping Indigenous people, while appealing to their base. (The fact that marginalized and dependent Indigenous people do not appear to be any less marginalized and dependent as a result of five years of this reconciliation policy doesn’t seem to be noticed by the public.) And the policy costs the Liberals nothing. The costs are instead borne by resource developers, landowners and taxpayers — often the same people.

The sacred bones industry is only one new sub-industry in the hugely successful Indian Industry. If activists and their Liberal allies have their way, it can only be expected to grow.

Brian Giesbrecht, retired judge, is a senior fellow at the Frontier Centre for Public Policy.

Published in PIPELINE OBSERVER Summer 2021