Moral and legal imperatives demand that the NCC stop ignoring its duty to consult Algonquin First Nations
January 17, 2016
British Columbia has learned the hard way that it was wrong to disregard coastal First Nations and their opposition to the Northern Gateway pipeline proposal. It’s a lesson that the National Capital Commission (NCC) must also heed for moral and legal reasons.
A searing victory for First Nations at the B.C. Supreme Court on Jan. 14, 2016 means that:
- the province of B.C. failed in its bid to transfer its duty to conduct an environmental assessment of the pipeline project to the federal government (an assessment that involved Indigenous input)
- a new environmental assessment will have to occur
- “the duty of the Crown” to consult did not lie with the pipeline company (Enbridge) or with the federal government, but with the B.C. government alone.
This latest ruling from B.C. builds on the Supreme Court of Canada’s June 2014 Tsilhqotl’in decision, which said that governments and industry must consult with Indigenous peoples. That case related to a corporate logging proposal on the unceded territory of the Tsilhqotl’in people.
If it needed further proof that the law favours Indigenous rights, the NCC could look to the Kapyong Barracks case in Winnipeg. It is a case where the courts have sided with First Nations in ruling that the Department of National Defence failed to consult when it attempted to sell this land for urban development. The court victory requires the federal government to consult with Treaty 1 signatories.
Based on these legal decisions, the NCC cannot justify its lack of action in beginning nation-to-nation dialogue with nine chiefs representing Algonquin First Nations. Isn’t this one of the hallmarks of the Trudeau government’s promise to act on the reality of reconciliation?
The NCC must be held to account on other fronts, too. In the case of the sacred islands, it has turned its duty to consult over to the corporation that wants to build 1,200 condos and pave what is currently zoned as “parkland” into a concrete jungle.
When it announced its support for Dream Windmill’s proposed condo project in early 2015, the NCC said its support was contingent on doing consultations with Indigenous groups. Its actions since then have put it on shaky ground because:
- in July 2015, the head of the NCC revealed that he had, in fact, turned the Crown’s duty to consult over to Windmill Development Group. Here’s what he had to say about that decision:
The NCC and Windmill came to an agreement that Windmill would be leading consultations with Aboriginal groups on behalf of both organizations. Discussions have been underway for some time now and I am encouraged that these consultations are an important part of ensuring the appropriateness of the development on Chaudière and Albert Islands.
- also in 2015, based on an Access to Information request, a once-secret NCC Memorandum of Understanding (MOU), dated July 2013, was released. The MOU relates to the sale of lands on Albert and Chaudière Islands (part of the Algonquin sacred site) that even today remain in the NCC’s hands. Windmill Development Group does not own these so-called Domtar lands, but is seeking to purchase them. The three-party MOU signed by the NCC, Domtar Industries and Windmill Development Group includes a segment that outlines the NCC’s intention to conduct Aboriginal consultations.
Remember that this MOU was signed in July 2013, long before the NCC announced its support for the Dream Windmill condo proposal. Its wording says that the NCC’s sale of the “subject lands…triggers the duty to consult with Aboriginal groups.”
It would appear that the NCC has, to date, abrogated its “duty to consult” twice—once by not acting on the intention that appears in black-and-white in the MOU and again in its public statements in support of the newly-branded “zibi” condo project early in 2015. Quoted in the Ottawa Citizen, one NCC Board member said his institution would “have to conduct its own consultations with Aboriginal groups.” The news headline that day? “NCC board gives conditional OK to Windmill’s Chaudière Falls development.”
Is it any surprise that the impetus behind Windmill’s rebranding of its project from “The Isles” to “Zibi” (the Algonquin word for river) a year ago hinged on its desire to get ahead of what it thought might be coming: opposition by legitimate First Nations to building condos on islands with deep spiritual significance for the Algonquin people?
Almost a year later, and more important than the power politics of a corporation determined to have its way, citizens and taxpayers need to demand that the NCC (through its current Minister, Melanie Joly) immediately act on the request by nine Algonquin First Nations to discuss their land rights to unceded territory. That request has also come to the NCC from the Assembly of First Nations.
It is unacceptable for taxpayers to foot the bill for a lengthy legal battle that precedents across this country show the Crown will lose.
The NCC’s duty to consult needs to start today. This is what the “honour of the Crown”—a common legal term—looks like, in both moral and legal terms.