The Broadbent Blog
Posted by Anna Stanley
The Broadbent Institute is pleased to present the first in a series of blog posts by a range of Canadian academics and thought leaders critiquing the record of the Conservative government.
Stephen Harper once espoused the vision of a Canada built on “solid conservative values”, one that would prove “unrecognizable” to his then governing (Liberal) opponents. It is now almost a year since the Harper government’s most profound and concerted effort to craft that Canada: the passage of the two 2012 omnibus budget implementation bills—The Jobs, Growth, and Long Term Prosperity Act, and The Jobs and Growth Act; due time to assess the far-reaching implications of these bills.
Scratch the surface and one finds sobering evidence of the neo-liberal and neo-colonial values underpinning Harper’s vision for Canada. The budget implementation bills are fundamentally about access to resources. The collection of legislative amendments contained in these bills have three main targets: resources (especially minerals, oil and gas) and crucial to them both—land; Aboriginal peoples, who inconveniently occupy or have overlapping claims to land on and under which resources sit, or who have rights to use things like fish, caribou and clean water that conflict with the ability of industry to extract; and immigrants, especially racialized immigrants and refugee claimants.
Let us leave the targeting of the latter aside for now and focus on land and Aboriginal peoples.
The budget implementation bills share two simple goals — the first is to literally rewrite the ability of Aboriginal peoples to access the resources and life sustaining services that they are variously morally, constitutionally, and legally entitled to; the second is to increase private and state capital’s access to lands and resources, to reconfigure the political-economic fabric through which individuals and communities have access to and benefit from those resources.
An Attack on Aboriginal and Treaty Rights
New legislation (such as the Canadian Environmental Assessment Act 2012) and legislative amendments (for instance to the Fisheries Act, Navigable Waters Act, Species at Risk Act, and Energy Board Act) contained in the two budget implementation bills drastically reduce avenues and vehicles for crown recognition of Aboriginal and Treaty Rights. Many provisions actually eliminate former provisions in these Acts that once triggered the government’s duty to consult and accommodate Aboriginal groups.
Aboriginal peoples have a unique relationship with the federal crown. The Constitution protects Aboriginal title to lands, as well as collective and individual rights for instance to use lands and the resources within them, including the right to hunt and fish. In general, these rights stem from treaties signed by individual Nations with the crown. The crown has an obligation to protect and ensure these rights (as has been confirmed many times by the Supreme Court) both in general and when they are threatened. When a project is proposed, however big or small the courts have also determined that the crown has a duty to consult with Aboriginal rights holders and accommodate their rights before approving a project. As a result, environmental legislation (until recently) has been amended to include mechanisms that enable Aboriginal participation and trigger crown duty to consult.
So what this legislation has done on a practical level is to eliminate triggers for the duty to consult, and avenues for Aboriginal peoples to participate in shaping or preventing developments that would impact on their rights.
While the Conservatives might not truly understand or respect the contours of “consultation” or “accommodation”, the federal government knows it cannot legislate its way out of its fiduciary responsibility to recognize and accommodate Aboriginal and Treaty rights. But they also understand the time, resources, energy, and money required to challenge these changes. In other words, they’ve put the onus on under-resourced Aboriginal groups to detect and challenge infringements.
It is important to acknowledge that the intent of the legislation was not haphazardly crafted but was strategic — it ensures that Aboriginal peoples have less of a say in how resources are transformed, less access to the benefits of those resources, and crucially less power to prevent others from destroying them.
Eviscerating Environmental Protection
The second goal of the legislation -to increase private and state capital’s access to lands and resources- is equally pernicious and intimately related to the first.
According to the Minister of Natural Resources Joe Oliver, section three of Bill c-38 (which contained most of the changes to environmental legislation) was to “ensure that Canada has the right conditions to attract global capital in our provinces and territories,” and to “unleash the potential of our resource sector. Existing environmental legislation, according to industry comments to parliamentary committee, “act[ed] as a direct barrier to foreign investment in natural resources “ by creating “delays and uncertainties” and subjecting extractive projects to “duplicative, cumbersome, and uncertain process”.
The budget bills addressed these “problems” by bringing resource governance in line with “solid conservative values” — in other words, making resources safe for capital. The upshot of these amendments both for Aboriginal peoples and for the integrity of the environment is stunning. It includes:
The shortening of environmental review times
The substitution of less stringent Provincial or territorial assessments for federal ones;
Restricting public and Aboriginal consultation to only “those directly affected“ as defined by review panels such as the National Energy Board;
Exempting a whole class of “smaller” projects from review whether or not they affect Aboriginal and treaty rights;
Increasing (confidential) ministerial power over decision making;
Drastically limiting the time available to Aboriginal peoples and the public to respond and assess the impacts of oil and gas development (including pipelines) ;
Eliminating the requirement to notify Aboriginal rights holder of a proposed project or assessment directly.
Eliminating the responsibility of government to fulfill their duty to consult and accommodate Aboriginal peoples under the Navigable Waters Act with respect to the use and development of thousands of waterways. (The courageous #IdleNoMore movement was, in fact, initiated in direct response to this attack on Aboriginal rights.)
Still other legislative amendments, for example to the Indian Act, make it easier for Aboriginal governments to lease lands to developers. That this is the only amendment to the Act, and that it was made in the absence of Aboriginal consultation is conspicuous. Why limit democratic participation of a particular membership in decision-making about its reserve land except to make it easier for leaderships interested in extractive development to lease lands and resources?
Solid Conservative Values
One of the stated purposes of this entire unilaterally imposed legislative onslaught was to reduce what federal conservatives, mining companies, and investors call “uncertainty”. Ironically, this attempt to make Canada safe for capital by wishing Aboriginal peoples and their inconvenient rights away might actually backfire. Spokespersons, analysts and lawyers for the Assembly of First Nations have repeatedly said that almost every piece of environmental legislation amended or enacted in these bills is ripe for constitutional challenge and will almost certainly lead to delays in the courts.
Make no mistake, Aboriginal rights can be threatening—threatening to private and state capital and threatening to “solid conservative values”. These rights protect communities’ abilities to access land and resources in common, they protect livelihoods and they nurture cultures. It follows, then, that exercising these rights, challenging their infringement and supporting (for once) Aboriginal rights holders as they do this is one of most significant ways in which Harper’s brand of neo-liberal, neo-conservatism will be challenged.
Anna Stanley is faculty at the National University of Ireland, Galway where she teaches and does research in political ecology and environmental justice. She has worked with a number of First Nations and First Nation advocacy organizations as a policy analyst.
The opinions expressed in this paper are those of the author, and do not necessarily reflect the views of the Broadbent Institute.