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Pipelines and persistent objection: Indigenous rights in Justin Trudeau’s Canada

In recent weeks, relations between indigenous groups and the Canadian government have soured further over the Trans Mountain Extension Project – the controversial proposal for extending oil pipelines in British Columbia and Alberta. This proposal, and other similar pipeline proposals, has led to a notable unification of indigenous groups in opposition. The ‘pipelines dispute’ between the government and a large section of its indigenous population has been rumbling on throughout the first year of Justin Trudeau’s leadership, but it intensified significantly at the start of November.

In general terms, it is fair to say that Canada has a chequered record in relation to implementing indigenous rights. Not only that, it has also traditionally failed adequately to recognise that they exist at all. Canada has long been incredibly cautious about accepting binding international legal obligations concerning indigenous peoples. Canada was, for example, famously one of only four states (along with the other likely suspects: Australia, New Zealand and the US) to vote against the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007. 143 states voted in favour of it.

The UNDRIP in itself is non-binding, of course, but increasingly–even since the 1990s–it’s been claimed, for example by the International Law Association’s Committee on the Rights of Indigenous Peoples in its 2012 Sofia report, that many new indigenous rights have attained the status of binding customary international law (albeit that this probably can only be said for some, not all, of the UNDRIP’s provisions).

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“Bakken / Dakota Access Oil Pipeline” by Tony Webster. CC BY-SA 2.0 via Flickr.

However, the four dissenting states have long persistently and consistently rejected the idea that there are any binding indigenous rights in custom. As such, they’ve been able to make the case that they’re ‘persistent objectors’ to the customary indigenous rights that have developed. In other words, based on its repeated objections before these rights became binding, Canada was able to claim that it had carved out a legal exemption to them.

That was, perhaps, until 2010, when Canada endorsed the UNDRIP and the standards contained within it. On the face of it, this looked like a reversal of its previous objector stance. However, on closer inspection, this wasn’t the U-turn that it appeared to be. Canada may have endorsed the declaration in 2010, but it did so extremely tentatively and made it very clear that it still saw it as merely aspirational. So the bunting had to be packed away: Canada apparently still was an exempt objector after all. Then, a year ago, Trudeau was elected. It took the Grits a few months, but in May this year the new Indigenous Affairs Minister, Carolyn Bennett, announced that Canada was formally adopting the UNDRIP, and that in so doing it was removing what she called its “permanent objector status.” Understandably, champions of indigenous rights around the world (and especially in Canada) rejoiced.

But, then, it became clear that it wasn’t going to be that simple. The grand gesture of adopting the Declaration was one thing, but realisations over the practical reality of actually having to implement it soon had the Canadian government backtracking. For example, in July, Justice Minister Jody Wilson-Raybould didn’t try to soften the blow when she said that incorporating its provisions into domestic law simply would be “unworkable.”

The implications of this latest U-turn on indigenous rights have come to a head, substantively, with the pipelines dispute. At the start of November Canada indicated that it feels that, while it needs to consult the native population regarding the pipelines, it doesn’t need indigenous approval to proceed with them. In response, indigenous leaders pointed out that UNDRIP Article 32(2)–a provision that is almost certainly also binding in custom, as was strongly implied in paragraph 213 of the 2011 Grand River arbitration final award–requires not just consultation but consent. Moreover, indigenous leaders also have stressed that they have not been meaningfully consulted either.

The question is thus no longer about the applicability of the law to Canada; it is about whether or not Canada itself applies the standards that it is legally required to apply.

Are we, then, to think that Canada has made yet another volte face on indigenous rights, returning to its previous persistent objector position? Do we have to pack away the bunting a second time? Well, at least legally, no. If a state wants to keep the exempt status that it has gained through persistent objection, that objection must be maintained consistently. If the state acts inconsistently–by, say, formally adopting a UN Declaration that contains the relevant customary norm in question, as well as explicitly saying that this means that it is no longer a persistent objector–then exempt status is lost. State practice shows us that manifestly inconsistent behaviour is terminal for a persistent objector claim. There’s no going back. Canada is now bound by the provisions of the UNDRIP that have become binding in custom just like everybody else (well, nearly everybody else–the US, for one, is still holding out as a persistent objector).

The question is thus no longer about the applicability of the law to Canada; it is about whether or not Canada itself applies the standards that it is legally required to apply. This fact is far reaching in terms of its implications for the implementation of indigenous rights in Canada, but, right now, it translates into a requirement for consent on the part of the populations that would be affected by the proposed pipelines.

Featured image credit:”Trudeau_bellegarde” by Renegade98. CC BY-SA 2.0 via Flickr.

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