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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."