According to Ontario’s new Conservative Premier Doug Ford, he had to scrap the sex-ed curriculum adopted in 2015 because it had been introduced without sufficient consultation. This statement flew in the face of the reality that there had been extensive discussions over a period of years about the need to replace a curriculum from 1998 – before sexting, gender identity, the issue of consent, and other challenging issues – and that some 4,000 parents had been involved in consultations prior to the new curriculum being adopted. In fact, Ford’s action was motivated entirely by the perceived need to toss a bone to the hard right and anti-gay religious zealots who gave Ford his leadership victory as their second choice candidate after Tanya Granic Allen was eliminated from the ranked ballot used in the selection process.
After showing this dedication to the importance of consultation, Ford then suddenly announced – with absolutely zero consultation with anyone – that the size of the Toronto city council would be cut in half for the 2018 municipal election. He launched this attack after the election campaign had been underway for months and just one day before the deadline for nominations to be filed for council positions. If Ford’s embrace of consultation in the first instance was motivated by a desire to pay back supporters, his total avoidance of any consultation in the second instance was motivated by a desire to punish Toronto city council, and especially left-leaning and downtown councillors, for their failure to show due deference when he and his late brother Rob were on council.
Ford’s motivations are personal and petty but at least they are transparent and understandable. Less easily understood is the nature of meaningful consultation with Natives in connection with pipelines – as outlined by the courts, specified by First Nation leaders, and addressed in legislation (Bill C-69) currently before the Parliament of Canada
Exhibit B: Consultation with Natives
At the end of August the Federal Court of Canada overturned the federal government’s approval of the Kinder Morgan pipeline expansion. It held that there had been a failure to consider obligations under the Species at Risk legislation with respect to the proposed pipeline’s possible impact on killer whales and, in addition, that the consultations with Native groups had been inadequate. Two previous pipeline projects – the Mackenzie Valley natural gas pipeline and the Northern Gateway oil pipeline – were also blocked by the courts on the grounds of insufficient consultation. In this latest instance, some 50 Native groups had apparently expressed support for the pipeline but six groups were opposed and were part of the recent court challenge.
According to the court, Canada has to engage in considered, meaningful two-way dialogue. It is not enough to listen and to record the concerns expressed by Indigenous representatives. Rather, Canada is to genuinely understand the concerns of the Indigenous applicants and then consider and respond to those concerns in a genuine and adequate way. The Federal Court ruled that Canada “failed to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodations of those concerns.” As a result, “the duty to consult was not adequately discharged.”
I am not clear on how far the Canadian Government would have to move to demonstrate adequate accommodation of Indigenous concerns, but the Native position seems straightforward. The President of the Union of B.C. Indian Chiefs rejects “cobbling together another so-called consultation process,” and states that the project “requires the consent of all the nations along the route.” This position seems to call for Canadian capitulation rather than accommodation and would appear to envisage a veto power for Native groups.
Exhibit C: The Flawed Federal Response
The federal government has missed an opportunity to bring some clarity to this issue because of shortcomings in Bill C-69, the legislation introducing a new body to assess pipeline and other proposed resource projects. This bill, which has been passed in the Commons and will now be discussed in the Senate, is strongly – and I think rightly – criticized in a recent Globe and Mail editorial for its lack of balance and its failure to shed any light on what meaningful consultation entails. The legislation focuses almost exclusively on the assessment and potential mitigation of negative impacts that arise from a project. Section 22 (1) lists 20 factors that must be taken into consideration including, in subsection (s) “the intersection of sex and gender with other identity factors.” But there is no specific mention of possible positive impacts such as jobs created, investment, or economic growth.
Most glaring of all, the new legislation makes no attempt to provide any guidelines as to the meaningful consultation requirement mandated by the courts. Rather than addressing the de facto veto power that Native groups seem to feel they enjoy, Bill C-69 expresses the government’s commitment to the United Nations Declaration of the Rights of Indigenous Peoples, a declaration that emphasizes the right of Indigenous people to “free, prior, and informed consent.” The right to consent implies much more than meaningful consultation and is suggestive of a veto power.