Indigenous peoples have affirmed constitutionally protected economic rights, yet we remain impoverished beneficiaries of the economic cycles in our Territories. We must be proactive and stop being reactive, as the duty to consult has taught us. There is a material tectonic shift occurring in our favour and we will seize this change for the betterment of generations.
In this short article, I will speak about (i) the Aboriginal economic rights test; (ii)UNDRIP/C15/DRIPA; and (iii) UNDRIP implementation.
First, let’s talk about that constitutional economic right. Since the Van der Peet Trilogy, Aboriginal law has affirmed and developed three recognized categories of Aboriginal economic rights in Canada. These three purposive categories are:
- food, social and ceremonial;
- sale, trade and barter for livelihood, support, and sustenance, but not for the accumulation of wealth; and
- sale, trade, and barter of a commercial nature.
The Delgamuukw and Tsihilqot’in cases further elaborated that Title and all Aboriginal Rights have an “inescapable economic aspect.”
That is powerful. There is no other peoples that the highest court has recognized that have constitutionally protected economic rights. There is a powerhouse to harness here.
Second, the empowering implementation of UNDRIP is at its infancy. BC is the sole jurisdiction where both Provincial and Federal Crown agree to make all laws consistent with UNDRIP. On economic rights,
- Article 3 connects the right to self-determination and our right to pursue economic, social, and cultural development.
- Article 5 speaks to our right to economic institutions.
- Article 20. 1. right to maintain and develop our… economic… institutions…
- Article 21. 1. right, without discrimination, to the improvement of our economic and social conditions… 2. Requirement of Crown to take effective measures and… special measures to ensure continuing improvement of their economic… conditions.
Third, let’s talk application. Indigenous peoples have at least two powerful arms. (1) the substantive economic rights arm, (2) the consultation, intergovernmental, and co-jurisdiction arm. An empowered peoples fight with both arms, not one tied behind our back.
The substantial economic rights need to be determined by our Indigenous knowledge and Indigenous legal orders to be fully informed of the applicable law. One universal knowledge and wisdom is that unlike other economic development, we have a built-in sustainable development requirement to preserve our Territories for future generations. Title requires us to ask ourselves, will this deprive generations of their future rights?
On the co-jurisdiction arm, UNDRIP will create an empowered future, not because governments are altruistic or that they even strictly follow the spirit and intent of their own law, but… because we are relentless, we are advocating for our children’s future and we take it personal, familial, and collective. Within a generation, Canadian laws will be consistent with UNDRIP. It will take time. It is frustrating because no one should be patient with racism or a colonial mindset.
We will reform laws as co-drafting partners over time, and it will dramatically change the legal, economic, and social landscape. Our economics in BC will add an “I” to ESG.
We will also herald a trend of joint ventures, impact benefit agreements and equity participation becoming UNDRIP and FPIC compliant. This will create the most legally certain jurisdiction in Canada and internationally. When you invest here, you will know the law is settling or settled. It will be what treaties once promised, real but dynamic legal certainty.
Finally, the entire DNA of revenue-sharing is being examined for dramatic expansion. Consultation created the minimal sharing of forestry agreements, ECDAs in mining, PBAs in LNG, etc. FPIC will raise this bar. It will be a wealth transfer, but… it will also be a wealth re-investment. BC First Nations spend in their own home territories.