Alberta pushes to kill Liberal plan to enshrine UN declaration on Indigenous rights

OTTAWA—Justin Trudeau, blamed by the Conservative Opposition for economic damage caused by rail blockades and Teck Resources’ decision to kill a massive oilsands project, faces new calls from Alberta to ditch plans to enshrine the UN declaration on rights of Indigenous peoples in Canadian law.

Ottawa and Alberta traded accusations Monday over their respective economic and climate action — or inaction — plans.

Now a new battlefront may be looming — one that will again test Trudeau’s ability to triangulate the Liberal government’s commitment to reconciliation with Indigenous people, his promise to accommodate environmentalists’ concerns about energy projects, and to “transition” Canada’s economy to a cleaner, greener posture without killing the oil and gas sector.

Alberta Premier Jason Kenney was furious Monday about what he said is a failure by Trudeau’s government to chart a clear path for companies like Teck Resources to develop energy projects.

And he is privately warning that a promised law to enact UN principles and protections for Indigenous peoples’ rights would only serve to introduce more uncertainty for investors.

At a news conference in which he lamented Teck Resources’ decision to abandon the proposed Frontier oilsands mine on Saturday, Kenney hailed his own court victory in Alberta’s fight against Trudeau’s carbon pricing scheme.

The Alberta Court of Appeal ruled Monday in favour of Alberta’s challenge of the federal carbon pricing plan. The 4-1 ruling called it an unconstitutional overreach into provincial areas of responsibility.

The federal Liberal government, on the other hand, insisted it will defend its carbon levy at the country’s top court next month, and is confident it will be upheld. Two other appeal courts, in Saskatchewan and Ontario have validated the federal carbon pricing plan, agreeing with the Trudeau government’s argument that climate change requires federal leadership.

Kenney slammed Trudeau’s government for allowing “urban green left zealots” to slam the door on economic opportunities for Indigenous people, and to mount protests to the oil and gas sector that he said vetoed a number of energy projects.

He listed the 2017 cancellation of Petronas’ Pacific Northwest liquefied natural gas project in B.C., the withdrawal of Trans-Canada’s Energy East pipeline proposal, the federal decision to disallow the Northern Gateway project and now Teck as examples of projects doomed by federal policy failures.

“I’ve been on the phone with major investors with whom we have been working over the past several months … who have cancelled, frozen and suspended major projected investments in our economy because of the massive uncertainty created by appearance of anarchy in parts of this country,” Kenney said.

From left to right: Alberta Premier Jason Kenney is seen at the launch of Canadian Energy Centre (CEC) at SAIT on Dec. 11, 2019, in Calgary and Prime Minister Justin Trudeau is seen arrives at a caucus meeting on Parliament Hill in Ottawa on Feb. 19, 2020.

“We need national leadership to ensure that Canada is a country characterized by the rule of law,” Kenney said.

The federal Liberals, on the other hand, pointed the finger at Kenney’s government for failing to enact a credible climate action regulatory plan, and quoting Teck Resources’ letter that announced the company was abandoning the project. Teck said it supported carbon pricing and other action, but added “until governments can reach agreement around how climate policy considerations will be addressed in the context of future responsible energy sector development … it will be very difficult to attract future investment, either domestic or foreign.”

Kenney said “Alberta will do its part” to avoid crises like rail blockades, announcing the immediate tabling of a bill to protect critical infrastructure that would provide new stiff penalties for anyone who “riots on or seeks to impair” infrastructure including rails in Alberta.

Kenney said First Nations groups should be “partners in prosperity,” and underscored that his government was able to reach revenue-sharing agreements with Indigenous communities including on Saturday, with the two First Nations closest to Teck’s now defunct Frontier Mine proposal.

Kenney has urged Trudeau to drop the plan for legislation to enshrine the United Nations Declaration of the Rights of Indigenous Peoples (or UNDRIP), and the Alberta premier also raised it last Thursday during the all-premiers conference call with Trudeau. He has since reached out to Quebec Premier François Legault for support, a source with knowledge of the discussion told the Star.

Legault is said to agree the legislation should be delayed, however Legault’s office did not respond to requests for comment.

Kenney said the Liberal government had to be “very careful” to avoid entrenching in Canadian law “the UNDRIP veto” — or what some Indigenous activists believe is a veto over land development.

Other legal experts such as University of Victoria law professor John Burrows, who is Anishinabe and holds the Canada Research Chair in Indigenous Law, say the UN document does not contain a veto.

The UN declaration underlines Indigenous rights to protect their culture, identity, religion, language, health, education and community.

It says: “Indigenous peoples have the right to redress” either by restitution or “just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.”

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Kenney believes any attempt to implement the United Nations declaration will only add new and greater uncertainty at a time when Canadian courts are finally starting to provide clarity about what the “duty to consult” means in Canadian constitutional law, said an insider privy to the discussions.

On Feb. 4, the Federal Court of Appeal ruled against a challenge by several Indigenous nations to the Trans-Mountain pipeline expansion plan, saying the federal Liberal government had met its duty to consult. Ottawa had expanded consultations in response to an earlier ruling in August 2018. The federal appeal court this month said that the duty to consult and accommodate Indigenous concerns “does not guarantee outcomes.”

It ruled that consultations must be meaningful, but do not amount to a veto: “The law is clear that no such veto exists.”

For its part, the Liberal government says it campaigned on the promise to implement UNDRIP, and still intends to table a bill soon.

Justice Minister David Lametti repeated that promise Monday in the Commons.

However Trudeau and Lametti are deliberately vague on exactly what the federal Liberal bill would set out.

A senior government official with knowledge of the government’s plans told the Star the Trudeau government had been looking at B.C.’s legislation — the first in Canada — to see how it is working.

The B.C. government says its legislation sets out a process to align B.C.’s laws with the UN Declaration and mandates government to bring provincial laws into harmony with the UN Declaration.

The federal official said the federal government’s bill has a similarly wide-ranging goal.

“It touches methodology and substance. It has no less a goal than to try and re-establish the proper place of Indigenous peoples in a society. So it’s about the method in which Indigenous peoples are incorporated into the larger body politic. So that’s a lofty goal.

“It also has substantive goals, about how the rights that Indigenous peoples have with respect to land and territory, with respect to their practices, with respect to the environment and resource management, with respect to the way in which the — for lack of a better term — the profits of resources are distributed. So it’s about justice. It’s about equity. It’s about the symbolic role. It’s about all of that.”

The government had decided to back a private member’s bill in the last parliament introduced by Romeo Saganash, but it died in the senate before the last election dissolved parliament.

However Kenney and Conservative leader Andrew Scheer believe Trudeau’s “weak leadership” is effectively granting a veto.

Andrew Scheer, left, and Alberta Premier Jason Kenney.

Scheer spoke to Trudeau on the phone Monday, and said he told the prime minister his “weakness and fear in dealing with his left-wing caucus and radical activists forced him to kill this project through delay and by constantly moving the goalposts.”

On Monday, Trudeau defended his government’s record, and said it was the Conservative Opposition and its provincial allies who are driving investment away by refusing to develop a credible climate action plan.

“Global investors have indicated that they need to see strong action on climate change. Canadians from coast to coast to coast want to see good jobs, but want to see stronger action on climate change. It is only the Conservative Party of Canada and its provincial counterparts that are standing against climate action and hurting our economy and jobs because of it.”

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