Adam Pankratz is a lecturer at the University of British Columbia’s Sauder School of Business and sits on the board of B.C.’s Public Land Use Society.
If there is one takeaway from the recent memorandum of understanding (MOU) between the federal and Alberta governments on a potential new oil pipeline to the West Coast, it’s that Canada needs to abandon the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and return to our own framework for reconciliation: Section 35 of the Constitution Act, 1982.
UNDRIP is proving to be a disaster. In British Columbia, we are seeing firsthand the extraordinarily deleterious effects of UNDRIP through its legislative application in the Declaration on the Rights of Indigenous Peoples Act, which B.C. passed in 2019. The act seeks to bring the province’s laws into conformity with the principles of UNDRIP, and the effects are already proving to be detrimental to the province — and to the cause of reconciliation.
Among the 46 articles of UNDRIP, certain ones are proving to have more immediate impacts than others. Article 26, for example, states that, “Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use.” That is to say, if an Indigenous group claims a territory, they own it and all its resources.
Yet the standard that the Supreme Court of Canada uses as its test for declarations of Aboriginal title is not this simple. In the Canadian context, the court has described Aboriginal title as, “The unique product of the historic relationship between the Crown and the Aboriginal group in question.” In British Columbia, the test is proof of exclusive occupancy as of 1846. This results in declarations of Aboriginal title to a much smaller piece of land than the traditional or claimed territory. In the landmark Tsilhqotʼin Nation v British Columbia case, for example, the Supreme Court granted Aboriginal title to less than five per cent of the band’s traditional territory.
Read the article at National Post: UNDRIP is strangling Canada’s economy | National Post