Support for UN declaration on native rights may spell trouble for Canada’s resource sector – by Tom Flanagan (Globe and Mail – November 23, 2015)

The Globe and Mail is Canada’s national newspaper with the second largest broadsheet circulation in the country. It has enormous influence on Canada’s political and business elite.

Tom Flanagan is professor emeritus of political science at the University of Calgary and chair of the aboriginal futures research program with the Frontier Centre for Public Policy.

The new Liberal government says it will implement the 2007 United Nations Declaration on the Rights of Indigenous Peoples. It’s no surprise, as the Liberals campaigned on it. Nonetheless, there is great potential for mischief here because the sweeping language of the declaration is inconsistent with well-established principles of Canadian property law.

Article 32 of the declaration would require Canada to obtain from indigenous peoples “free and informed consent prior to the approval of any project affecting their lands or territories” for developing natural resources. The words sound nice, but they raise three big problems in Canadian law.

First, aboriginal ownership of land in Canada is poorly defined. Land-surrender treaties were never negotiated in the Atlantic provinces, most of Quebec and most of British Columbia. Does that mean aboriginal peoples still own the land in those regions?

Perhaps, but the Supreme Court of Canada is still working on the question. Treaties were signed in Ontario and the three Prairie provinces; but the Assembly of First Nations maintains the First Nations surrendered the land only to “the depth of a plow” for agriculture and still own all subsurface resources.

The concept of “traditional territory” has never been legally defined, so claims to traditional territory often overlap among First Nations and Métis.

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