Canadian Lawyer

May 2021

The most widely read magazine for Canadian lawyers

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Page 30 of 43 29 that that concept doesn't exist in UNDRIP. "Ownership over land does, and the right to get the land back if it was part of your traditional territory, [but] that doesn't align with Canadian law where you have to prove title. So, how are we going to make every law consistent with that?" asks Isaac. UNDRIP includes the concept of free, prior and informed consent by First Nations affected by a nation's laws and administrative measures. Isaac says the B.C. government's definition of consent in UNDRIP doesn't align with the common understanding of consent. Questions have also been raised over whether UNDRIP would give Indigenous peoples — First Nations, Inuit and Métis — the right to veto energy and infrastructure projects. McPherson calls this idea "a straw man." A veto does not mean that one side "can unilaterally, without reason, say no to things," he says. "Consent is about process and means you are informed and are able to consent to something happening. "Part of what underpins that idea is that First Nations governments are inherently more unreasonable than provincial, federal or municipal governments," he continues. Indigenous peoples must also follow the principles of administrative law and cannot withhold consent unreasonably, "so the idea that it's a straight-up veto . . . is just not accu- rate. First Nations aren't able to say no in any circumstance." The Supreme Court of Canada has articu- lated the need for both parties to come to the table from a reasonableness position, he says, in Mikisew Cree First Nation v. Canada and Haida Nation v. British Columbia. But "there needs to be actual compro- mise, and that in my view is something that's frequently missing," he says. "The position of many First Nations is that they have been doing almost all the compromising for 150 years plus and would now like the Crown and proponents to start doing compromising themselves."

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