We Need Bulldozers Working ASAP. But let’s Not Do so Recklessly
March 12, 2025
Photo Source: https://www.toromontcat.com/newproducts/406-equipment/482-dozers/323-medium-dozers
Recently B.C. Premier David Eby announced his government’s intention to fast track permitting for 20 key projects, many of them in the mining or energy sectors. This is part of a comprehensive response to the unilateral imposition of tariffs by the U.S. government on Canadian produced goods. An examination of how our governments (provincial and federal) go about issuing permits and otherwise approving mega-projects is an essential part of developing a long-term Canadian Industrial Strategy that will ensure our continued independence, prosperity and sovereignty.
In reviewing permitting processes with a mind to expediting vital projects that are in the national interest, it is clear that collectively Canadians must honour its commitments to the indigenous people to engage in Free Prior and Informed Consent (FPIC).
FPIC and the duty to consult are not barriers but rather are core processes that enable meaningful participation by indigenous people and provide avenues that will lead to self-determination and self-government. The formation of Canada, though historically mired in many difficulties with respect to the relationship between indigenous people and our governments, was predicated in the assumption by Canada of upholding previous obligations made by the Crown (British Government) to protect the rights of indigenous people.
In the settlement of the Seven Years War under the Treaty of Paris 1763 the British Government promised to allow French Canadians to maintain their culture, freely practice Catholicism and provided for French fishing rights off Newfoundland. Article IV of that Treaty has also been cited as the basis for Quebec's unique legal code (called Civil Code) that differs from the rest of Canada. There was a general constitutional principle in the United Kingdom allowing colonies taken through conquest to continue their laws. This is an important principle which also extended to protecting the rights of indigenous people (in addition to their rights under any Treaty).
The Treaty of Paris was signed in February of 1763. Later that year, in October, King George III provided clarity with respect to indigenous rights in the issuance of the Royal Proclamation of 1763. Specifically, the Proclamation provided for:
Defining the land west of the established colonies as "Indian Territories", where First Nations people "should not be molested or disturbed" by settlers and where the Indian Department would be the primary liaison between the Crown and First Nations people.
Prohibiting colonial governors from making any grants or taking any land cessions from First Nations people by establishing a set of protocols and procedures for the purchasing of First Nations land.
Since its issuance in 1763, the Royal Proclamation has served as a basis of the treaty-making process throughout Canada and is referred to in Section 25 of the Constitution Act (1982). The Proclamation, and the accompanying promises made at Fort Niagara in 1764, laid the foundation for a constitutional recognition and protection of First Nations rights in Canada. It is a given that in the formation of Canada under the British North America Act (1867) the fledgling nation accepted recognition of Indigenous rights and Aboriginal law.
The honouring of the principles laid down by the Treaty of Paris and the Royal Proclamation are essential to the definition of Canadian law and culture and are inviolable. They are an integral part of the notion of the “honour of the Crown” which arises because of the Crown’s claim of sovereignty over Canadian territories and pre-existing Aboriginal sovereignty and territorial rights. The courts, including the Supreme Court of Canada have found that “in treaty-making and implementation there will be a duty to engage in honourable negotiation and to avoid the appearance of sharp-dealing.”
These principles are important, especially as our patience is tested during these current times. In other words, despite what we perceive to be an existential crisis created by misguided comments made by the leadership in the U.S. with respect to Canada becoming the 51st state, Canada continues to be obliged to act in good faith and in doing so ensure it fulfills its fiduciary responsibilities with respect to the indigenous people who we coexist with. … lets not bulldoze over our obligations to the indigenous peoples just because we have this crisis.
ASIDE: The honouring of the Royal Proclamation, Canada stands in stark contrast to the how the U.S. treated the same document. The US viewed the proclamation of lands as being “Indian Territory” and therefore a barrier to the American manifest destiny. Hence, the U.S. approach was often to use violence to remove indigenous people from their lands.
The Canadian approach the Royal Proclamation, which followed many years later, was to negotiate land rights through the Numbered Treaties.
It is recognized that those treaties were flawed and were not honoured in execution. These are issues that continue to be contentious and subject to reconciliation. Doing so remains complex and time consuming but ultimately is worth the effort precisely because it will further define the distinct nature of Canadian culture and differentiate Canada from its southern neighbour in a very meaningful way.
One of the projects being contemplated in B.C. is an expansion at BC's biggest copper mine, Highland Valley Copper near Logan Lake. The expansion would extend the mine's lifespan from 2028 to 2040 if approved, but the Stk'emlupsemc Te Secwepemc Nation intervened to claim rights to the land under a new dispute resolution process that came into effect last summer.
In a written statement, an environment ministry spokesperson said the consultation process will still go through before the fast-tracked permit for Teck's Highland Valley Copper might be approved. So, while the government is in its "final stages" of assessing Teck's plan, it intends to continue to honour the requirement to consult (FPIC).
The Secwepemc nations have asserted historic use of the Highland Valley area, but the province has long "preferred" Nlaka’pamux First Nations as having sole claim to the area, according to its own assessment. Several Nlaka’pamux First Nations echo the province's assertion, and the assessment has so far pointed to those communities as the only ones directly affected by the mine's planned expansion. Regardless, the B.C. government is committed to consensus-seeking during the assessment process.
There may be a need to establish ways to expedite the consultation process through agreed upon principles established through modern treaty mechanisms. This may include establishing mechanisms to arbitrate competing claims with respect to the same land. Nevertheless, it is our challenge, and one we must meet. There is no path forward that exempts Canada from fulfilling its obligations to the indigenous people. By enabling land claims to be settled and conditions to be laid down for self-determination and self-government we will establish our unique Canadian culture to the benefit of all Canadians and the indigenous people we share this land with.