A government’s most basic function is the protection of its sovereignty. -Simon Schama[i]
States are not structures to be taken for granted, exploited or discarded, but are the fruits of long and quiet effort. It is tempting but dangerous to fragment the state. – Timothy Snyder[ii]
As most of Canada’s natural resources are on First Nations land, First Nations have to be at the table…Provinces don’t trump First Nations. -Assembly of First Nations Chief Cindy Woodhouse Nepinak[iii]
————————————————
One important consequence of the United States’ tariff and other threats and actions against Canada is that Canadian leaders have finally woken up to the dangerous reality that Canada’s economy, and in particular Canada’s energy and mining economy, is too dependent on American trade and too defenceless against American hostile attacks against it.
Another reality that they should have awakened to, or in any event shortly will, is that our federal government, by virtue of its paramountcy and disallowance powers, has more power over the provinces to act in the national interest than either it or the provinces have over Aboriginal peoples to act in the national interest.
Where for decades our best and brightest have been ignorant of or complacently or timidly silent in the face of this reality, with America’s cold water now running down their faces, hopefully having been awakened somewhat, they are now all suddenly falling over themselves describing the situation as a national emergency that must be quicky addressed by such nation saving and nation rebuilding measures as the elimination of inter-provincial trade barriers, the speeding up of resource project permitting, being less perfectionist with environmental standards, and generally adopting a united, “go Canada!”, gung ho attitude and approach towards undertaking and speedily completing new energy and mining projects that would lessen Canada’s vulnerability to threats and actions against our country and our economy and our national security like those recently made by the United States.
Part of this new-found enthusiastic support for this seemingly great idea, centred on the notion of “liberating natural resources from their regulatory shackles”, is the revival of East-West energy projects, such as the Northern Gateway pipeline, that would have transported oil from Alberta to the West coast for export abroad, and the Energy East pipeline, that would have transported oil to the East coast for export abroad. Both of these worthy projects failed to materialize because of iterations of these “shackles”.
Legislative shackles such as environmental laws and Panglossian Trudeau’s Crown sovereignty-emasculating UNDRIP Action Plan legislation, which gives Aboriginal bands and groups a “free, prior and informed consent ”, de facto veto, which de facto veto the Federal Court has recently strengthened, and British Columbia’s similar provincial version of UNDRIP, with the right will and courage, and in keeping with the existential exigencies of this war time-like (lite) “emergency”, could all be quickly legislatively removed, and to that extent, the perilous situation of Canada and its resource economy could start to be quickly improved.
But not improved enough to make a difference, because of the existence of two other shackles-which are certainly inter-provincial in effect- but are constitutional in nature, and thus can’t be legislatively removed quickly, or practically speaking, at all.
These are firstly, the consult and accommodate duty owed to Aboriginal peoples, and secondly, Aboriginal title, the latter the subject of Part 2 of this two-article series, entitled Aboriginal Title Erases Nation-wide Crown Sovereignty and Emasculates Canada’s Ability to Defend Itself Against Threats and Attacks from the United States and Other Foreign Nations.
The Supreme Court of Canada in the 2004 Haida Nation case invented out of legal thin air the constitutional duty on the Crowns of Canada, (usually downloaded onto the shoulders of resource projects proponents), to consult and accommodate any Aboriginal band or group that merely asserts that a proposed Canadian resource project might potentially affect their section 35-guaranteed rights to hunt, fish, trap and gather on any part of their reserve lands, or in any part of their adjacent, always undefined, seemingly limitless “traditional lands”.
The Court said that the duty does not create an Aboriginal veto: “The Crown is not under a duty to reach an agreement, rather, the commitment is to a meaningful process of consultation in good faith.”
Notwithstanding this, far from the Supreme Court’s mahogany-panelled Ottawa redoubt, where abstraction too-often rules, “out there”, in real world Canada, where messy, real life unfolds, this constitutional duty has in fact, in its practical application, resulted in the creation of a de facto Aboriginal veto over whether or not any such resource or resource-related project will be permitted to go ahead.
This is a constitutional shackle, from which Canadian federal and provincial governments can only be freed by an amendment to our Constitution or by the Supreme Court reversing itself in some future court case that comes before it, both of which happenings are extremely unlikely.
In my view there is no practical legal right on the part of either the federal government or any provincial government, in any situation, including a situation of national emergency like Canada is facing today, to override, ignore, infringe upon, dispense with or waive its duty to consult. According to its terms, it is absolute and unconditional, regardless of the circumstances.
Assembly of First Nations Chief Woodhouse Nepinak is right: Neither the provinces nor the federal government can “trump First Nations.” There’s no paramountcy or disallowance provision anywhere for our elected governments to use in relation to Aboriginal conduct that, objectively viewed, is contrary to the national interest.
The Assembly of First Nation’s not unreasonable legal position, based on the terrible status of current law, is that the Supreme Court has made “Aboriginal peoples”, in the area of our resource economy, a virtual co-equal, third branch of government, such that, as Ms. Woodhouse Nepinak demanded, First Nations should be involved with the federal government as “partners” in all tariff talks with the United States.
The Supreme Court has even granted consult and accommodate rights to borderlands American Indian tribes, thus allowing them to be used as anti-Canadian agents of Trump and other American interests hostile to Canada’s national interest, which rights they are now actively exercising, and which non-citizens’ Aboriginal rights our elected governments, as stated, can do nothing about.
This is the emasculated place our Supreme Court and, with UNDRIP, the Trudeau government, in terms of protecting and advancing our economy, and in terms of our protecting our national security, has left Canada in.
According to Haida Nation, the determination and recognition of and respect for not just actual but potential Aboriginal rights- rights that Aboriginals may merely assert have some direct or indirect connection to fishing, hunting, trapping, gathering or to the preservation of their pre-contact lifestyle and culture- requires the Crown, where it is proposing to engage in some future resource undertaking, or to grant to an individual or a corporation a license, permit or other such right to engage in a proposed resource undertaking, to act:
… “honourably” and “… to participate in processes of negotiation. While this process continues, “the honour of the Crown may require it to consult and, where appropriate, accommodate Aboriginal interests….”
These key words have given Aboriginal bands all across Canada a chokehold on huge aspects of resource development in rural and wilderness Canada, and even in some parts of urban Canada, whether it be in relation to the construction of a new pipeline, the opening of a new mine, a new forestry undertaking, the transfer of Crown land to a municipality, the building of a new dam, a wind power installation, the construction of a new road or transmission line or anything else similar.
All an Aboriginal band or group has to do now, following Haida Nation, is to merely assert, regardless of whether or not it’s even remotely the case, that a proposed off-reserve government or private resource-related proposed undertaking will affect an asserted Aboriginal right or concern, actual or potential, and the “duty to consult” is then instantly activated, thereby automatically engaging the Aboriginal de facto veto, namely, the costly and delaying “consultation and accommodation, if necessary” process.
As the Supreme Court said in a later decision following Haida Nation, the mere fact that an Aboriginal claim has been accepted by the Crown for negotiation “…establishes a prima facie case that the claim has merit.” No concrete facts need to be provided. No evidence threshold needs to be met. A mere assertion, such as, “The proposed undertaking will affect our sacred land,” or, “We claim Aboriginal title to this land”, (see below) will suffice.
Obviously therefore, given human nature, given any individual’s or group’s tendency not to pass up a good thing if it’s there for the taking, whenever any of these projects are now proposed, with virtually no evidentiary threshold-merit standard to be met, any remotely nearby Aboriginal band or reservation now immediately claims that an actual or potential “Aboriginal interest” of theirs will be affected, like “sacred ground” or trapping or berry gathering, thus requiring that they be consulted and accommodated, the latter term in practice usually meaning bought off.
In practice, “consultation,” in too many cases, has turned out to be an almost endless process, because Aboriginal band or group elites have no compelling reason to ever finally settle, the actual process of consultation, involving travel off the reserve, expense account living, consultation fees, “capacity funding” and other large sums of money being paid to them- almost always paid by the project proponent- meetings with important people in new places, wallowing in unhealthy, (but feel-good, to the tribal-minded), race talk, fawning media events – the stimulation of it all-the ego boost caused by it – being in itself almost an end- an attractive, engaging, lucrative activity.
This is supported by Aboriginal writer Calvin Helin, in his book, Dances With Dependency:
“Community members complain that many Aboriginal negotiators have latched onto the sinecure as well and have made profitable careers largely through negotiating one treaty. Youth view many of these negotiators as elitists not wishing to bring an end to the “ongoing banquet” but instead are sucking the assets out of a treaty settlement before it is even made. Ordinary Aboriginal folk wonder where the incentive for their negotiators to settle their treaties is when they are profiting handsomely from the process.”
And accommodation “where appropriate,” well, as stated, who is to say? And is there anyone with the courage to say that, in any given case, it’s “not appropriate”? Who will risk taking the flak for that? So far, in almost all cases, no one.
Because in this new Crown sovereignty-derogating world that was unilaterally and irresponsibly created by our Supreme Court and then enthusiastically supported, or at least acquiesced in without protest, by both levels of our governments and by our elite classes, the law, and broader policy considerations generally, and the collateral financial damage inevitably caused, are all secondary. The essentially ungoverned, unchecked and unregulated raw and coercive delaying power of Aboriginal bands and groups, for all involved, has been the first and foremost consideration.
The consultation duty has had devastating effects on numerous proposed resource projects.
The $8 billion, nearly 1200 kilometers-long, proposed Enbridge pipeline would have delivered nearly 525,000 barrels of petroleum a day from Edmonton to a tanker terminal on the B.C. coast. As the Canadian Press wrote:[iv]
” The federal government claims Canada is losing billions of dollars a year because western Canadian oil is not reaching markets overseas. Enbridge has said Northern Gateway is expected to grow the Canadian GDP by more than $300 billion in 30 years.”
In June of 2014, after hearing hundreds of witnesses, receiving thousands of written submissions, and after many days of live hearings involving full and thorough examination and cross-examination of expert witnesses, and after a more than sincere attempt to “consult and accommodate’’ all the Aboriginal bands along and near the pipeline corridor, (they even offered them a $100 million dollar trust fund and a 10% equity stake), the National Energy Board approved the construction of the pipeline.
In any other modern country that would be enough for something so massive and beneficial as this undertaking to go ahead. But not in the new Supreme Court-created Canada, where consultation perfection is apparently their simplest requirement.
In June of 2016 the Federal Court of Appeal, in an extreme example of excessive judicial activism, quashed the permit issued by the federal government for its construction.
The Court ruled that despite the eighteen years of consultations and hearings on the part of Enbridge, despite the years of financial inducements offered by Enbridge, (“Impact benefit agreements”), the federal government, (not Enbridge), had “failed in its duty to consult First Nations prior to issuing a cabinet order approving the $7.9 billion pipeline.”[v]
Then, as referred to above, in late 2016 the Justin Trudeau Liberal government killed the project, shockingly heedless of Enbridge’s loss of the $500 million it had spent over those many years seeking government approval for the project, heedless of the $2 billion in direct and indirect benefits that would have gone to Aboriginal groups.
The cancellation of the pipeline was an easily foreseeable disaster for economic development in Canada and for East-West energy security- an easily foreseeable emasculation of Canada’s ability to defend itself against American economic threats and predatory behavior.
Highlighting how deeply embedded in our economy is the consult and accommodate duty, and the danegeld reality that comes with it, and how cravenly accepted this is by our corporate leaders, recently an Enbridge spokesman said that the pipeline could only be built now with “increased Indigenous consultation and direct participation via an expanded loan guarantee program.” This means that the Canadian taxpayer has to guarantee federal “loans” to First Nations, so they can “buy in” and become equity partners in the pipeline, all amounting to free money to both the First Nations “stakeholder”, which doesn’t have any money of its own, and free money to, in this hypothetical case, Enbridge. This is simply race-based, welfare capitalism– a deeply flawed and weak economic model and foundation upon which to quickly beef up Canada’s resource sector and enhance Canada’s national security.
In 2017 Kinder Morgan Inc., having received permission from the federal government to expand their pipeline from Alberta to the British Columbia coast, found itself the subject of twelve Aboriginal lawsuits, alleging lack of adequate Haida Nation-decreed consultation and making objections based on claimed Aboriginal title (see below).
A legal brief filed by one of the Aboriginal bands correctly argued that the court challenges created “significant uncertainty around the pipeline” and suggested that there was a likelihood that the pipeline “will not get built, and certainly not on the schedule that Kinder Morgan is suggesting…”. It went on:
“Likely outcomes (for the pipeline expansion) include a permanent rejection if aboriginal title is recognized, or an interim injunction while a title case is being heard…Combined with significant political and reputational risk, it is our opinion that the project faces material risk.” [vi]
Kinder Morgan, justifiably fed up with the dealing with the lawsuits and the delays they were causing and exasperated by the state of the Haida Nation-caused law, announced that it would pull out of the project unless legal clarity and certainty was established.
It was not, and there was no way it could be. For investors the only certain thing that has come out of the Haida Nation ruling was/is guaranteed investment uncertainty, which is anathema to capital’s need for legal certainty.
In the end the federal government had to buy the pipeline from Kinder Morgan in order to save it and to ensure its completion, all at the cost of Canadian taxpayers. It is now operated by Trans Mountain Corporation, which is owned by the federal government.
A further example of this shackled resource industry dysfunction is the never-built and likely never-to-be-built Mackenzie Valley pipeline. Because of the huge delay in getting approval for this massive project, which would have contributed so much to the Canadian economy, much of the delay caused by objecting Aboriginal bands, so much time went by that the underlying market conditions and the economic window, the existence of which were necessary for the project to be successful, disappeared.
Gwyn Morgan, founding CEO of EnCana Corp. described this situation of almost willful political and legal paralysis as “the biggest trade gift from one country to another (the U.S.) because of our own self-inflicted inability to access offshore markets with Canadian oil”, and a “ruinous giveaway of billions of dollars to the Americans”.
Mr. Morgan further wrote:
” The result has transformed regulatory proceedings that would have taken weeks into multi-year events with sky-rocketing costs that either delay or kill the project… and has led Canadian oil and gas producers, including my former company EnCana, to move tens of billions of investment dollars and many jobs south of the border.”[vii]
How relevant these words still are, now that the Panglossian eyes of Canada’s best and brightest have been opened by Donald Trump.
Our harmful regulatory and Aboriginal laws are stymying Canada’s efforts at achieving energy independence and, as Mr. Morgan said, are diverting resource investment capital to the United States and elsewhere, the former our now openly-declared trade antagonist.
In October of 2017 the same merciless, money-burning delays finally scuttled Trans-Canada Corp’s plan for its proposed Energy East 4000 kilometers pipeline that would have shipped Alberta oil eastward, to refineries and export terminals in New Brunswick. But naturally:
“… native leaders want(ed) to ensure that they see some benefits from the $12 billion project, and they would present a challenging obstacle for its completion if they are excluded.”[viii]
Trans-Canada had the near-hopeless task of satisfying, not only the National Energy Board and the provinces and municipalities through which the pipeline would have crossed, but the “chilling effect” of 180 (!) different Aboriginal bands along the way, all of which were saying that they would be “affected” by the pipeline and all of which were demanding their own unique, consult and accommodate, toll-gating packages.
In mining, the consult and accommodate duty is stymying development of the critical minerals-rich “Ring of Fire” mineral deposit area in Northwestern Ontario.
An American company, Cliffs Natural Resources, was considering spending millions of dollars to develop its “Far North” Black Thor chromite ore deposit there. In addition to the new mine itself, if the overall project had gone ahead, Cliffs would have built and operated a ferrochrome smelter in Sudbury, having chosen that location over Greenstone (in the Lake Nipigon area), Timmins and Thunder Bay, because that location made the most economic sense.
Aboriginal bands tied up mine development with delaying and costly objections and consultation and accommodation demands. They even purported to dictate to Cliffs where they were to locate their smelter.
Fed up and losing money, Cliffs cancelled the Black Thor project, citing, amongst other reasons, “the uncertain timeline and risks associated with the development of necessary infrastructure to bring this project online.” In March of 2015 it agreed to sell its interest in the very fireless Ring of Fire to a former competitor for a fraction of its investment.
Garry Clarke, the Executive Director of the Ontario Prospectors Association, wrote the following about the overall effect of consult and accommodate on mining in Ontario:[ix]
“…First Nation court challenges, Aboriginal mining moratoriums, and a Ring of Fire “evictions list” from the Matawa chiefs have caused a hardening of attitudes among prospectors and exploration firms that’s having an economic impact.” “It’s causing people to leave the province,” said Clark, adding most of the Thunder Bay-based junior miners are raising money and concentrating on projects outside of Ontario. One Vancouver mining executive told Clark in July that “there are too many problems in Ontario and until you solve them, we can go work in other places. ” This is exactly what is happening- not only in Ontario, but on the national level- investors either avoiding Canada or focusing their investment dollars elsewhere.”
The Ontario Ford government is presently trying to get this massive critical minerals project going again, but again, is facing so much Aboriginal obstructionism, including a lawsuit based on UNDRIP, consult and accommodate and Aboriginal title challenging the very basis of the Ontario government’s constitutional authority to regulate mining activity in the area without Aboriginal consent and co-management, that, in the absence of bold and decisive Crown sovereignty-assertive action on the part of both Ontario and the federal government, it will be years, maybe decades, before the Ring of Fire project actually gets underway.
The critical minerals in the Ring of Fire area are a large part of Canada’s wealth of critical minerals that on February 7th, 2025 Prime Minister Justin Trudeau said the United States government wanted to get their hands on by the means of annexing Canada.
In the 2023 case, Gitxaala v. British Columbia (Chief Gold Commissioner), the BritishColumbia Supreme Court, based on consult and accommodate and B.C’s version of UNDRIP, and giving judicial credence and weight to the Gitxaala’s folklore claims of spirits and supernatural beings living in physical dens, declared B.C.’s 164-year-old mining tenure law to be in breach of the province’s constitutional duty to consult with Aboriginal people, and ordered it to be rehauled to provide for mandatory consultation at all stages of mine development, including claims-staking. Not satisfied with this win, the Gitxaala appealed the judgment to the B.C. Court of Appeal, asking the appeal court to rule that First Nations must be consulted before any legislation is passed affecting their Aboriginal rights.
Any remaining prospector in B.C. who in future wants to stake a mining claim will now have to consult with all nearby Aboriginal bands before they are allowed to file it. (Anyone familiar with mining and with the risky and secretive business of claims-staking knows how preposterous and unworkable this is.)
Our suddenly gung-ho politicians, as the result of the seeming economic emergency caused by Trump, now advocate the revival and fast tracking of projects like Northern Gateway and Energy East.
Relevant to this, the Gitxaala Court was very clear in saying, when responding to the B.C. Government’s argument that, given the huge, proven economic benefits of mining in the province, the consult and accommodate duty should be either waived or only very lightly applied, that: “Economic benefit cannot displace the duty to consult.”
Added to this was the defiant warning from B.C. First Nations, echoing Assembly of First Nations Chief Woodhouse Nepinak, that even in the present emergency situation, “Government and industry must not take shortcuts with proper First Nations consultations”.
How in heaven’s name is Canada able to respond economically to this America-awakened “emergency situation” with such immoveable laws as “consult and accommodate”, which so seriously delegitimizes government power and makes resource investment in Canada so risky and unpredictable, and which threatens the quick start to national security undertakings?
The situation is made worse by the fact that our suddenly gung ho politicians and other leaders seem to be either afraid to publicly mention and confront the immovable nature of these national security threatening, resource-shackling constitutional laws, or they seem to be unaware of their true nature, as evidenced by the National Post simplistically calling for “the removal of unnecessary consultation requirements for infrastructure projects so the pipelines and export terminals can be fast-tracked.”
For the sake of national interest, the time is fitted for the duty of beginning the process of ending this harmful, now-immovable consult and accommodate law; the first step of this process simply being engaging in public discussion and debate about it.
The constitutional foundations of our Canada need to be changed so that Canada can properly, quickly and effectively defend itself in times of national emergency, however defined.
Haida Nation has got to go. Section 35 has got to be ended somehow.
In this time of national security and economic peril our politicians and other leaders must dare to be Daniels and speak out publicly about this. “To sin by silence when they should protest makes cowards of men”. – Abraham Lincoln.
And then, they must act.
Peter Best
February 28, 2025
thereisnodifference.ca
[i] From Citizens: A Chronicle of the F
[ii] From Black Earth- The Holocaust as History and Warning, Tim Duggan Books, New York, 2015
[iii] Article: Boost indigenous business to counter Trump’s tariff threats, leaders say– Alessia Passafiume, The Canadian Press, February 7, 2025
[iv] The Canadian Press, April 11, 2014
[v] Shawn McCarthy and Jeff Lewis, Federal Court quashes Gateway permit, The Globe & Mail, July 1, 2016
[vi] Shawn McCarthy and Jeff Lewis, Trans Mountain faces new risk from NDP, Greens, The Globe & Mail, May 30, 2017
[vii] Gwyn Morgan, The Pipeline Test of Democracy, The National Post, July 13, 2017
[viii] The Globe & Mail, December 9, 2013
[ix] Northern Ontario Business, September 2012
