Ottawa must consult indigenous people on changes to Species at Risk Act

Changes to the Species at Risk Act should not be imposed by government but achieved through co-operation with indigenous people



“Damn the torpedoes, full steam ahead!” This is one way to get things done, but the wreckage it leaves in its wake can undermine the victory. The current federal government’s relationship with environmentalists and indigenous peoples is a case in point.

The evidence is everywhere, from public demonstrations and hunger strikes to an explosion of litigation.

Much of the conflict involves the failure of the federal government to consult and accommodate indigenous peoples when making decisions about environmental protection and natural resource development.

And, in a fashion reminiscent of last year’s omnibus legislation, the federal government is promising further amendments to the Species at Risk Act that will, according to former Environment Minister Peter Kent, render this unique law “more efficient” in order to develop resources faster.

While everyone claims to seek a healthy environment and sustainable economic well-being, the challenge is to work together to make this a reality for us all. We need a new approach.

The good news is that we can draw upon past experience. The development of SARA, signed into law in 2002, engaged hundreds of rights holders and interest groups and took nearly a decade to enact.

It involved complex negotiations and trade-offs between industry, provinces, environmentalists and landowners. Of particular note was the process established to engage indigenous peoples.

In 1996, a working group was created that brought together federal officials and representatives of national aboriginal organizations and wildlife management boards to make recommendations for the development of national endangered species legislation.

From preliminary discussions and first principles to the finer points of legislative drafting, this working group continued to serve through several versions of the bill in multiple parliamentary sessions. The authors of this op-ed were active participants, sitting on different sides of the table in the working group and saw how the process worked.

Co-chairs representing the federal government and indigenous peoples created equality at the table.

Indigenous cultural traditions influenced the proceedings with elders reminding us to maintain our focus and work together to protect the Earth. Smudges, prayers and talking circles were part of the process.

It took an open mind on the part of all the participants to put aside their inherent mistrust and suspicions.

But the linchpin of this respectful engagement was the sharing of draft legislation with legal counsel for indigenous organizations prior to its tabling in the House of Commons.

This was a remarkable step, given that the draft was under embargo as a confidential cabinet document. To deliver on this level of consultation required great trust on the part of the federal government, a trust that was earned and returned in full.

The process worked, protecting endangered species and ensuring that indigenous people felt heard. While SARA did not emerge as a perfect law, it was not a “take it or leave it” or, worse yet, a “here’s the new law, get used to it” experience.

We have seen too much of that lately, including recent changes to SARA made by the federal government entirely in isolation.

It takes political courage to be inclusive.

The federal government’s relationship with indigenous peoples must be one of partnership, not of adversaries. The same can be said of its relationship with environmental and conservation organizations.

Consultation with indigenous peoples and the accommodation of their rights is the law in Canada, confirmed by the Supreme Court of Canada as a fundamental principle of constitutional law. It must become the norm for both legislation and resource development.

Furthermore, considering the symbiotic relationship between biological and cultural diversity, moving forward to develop resources responsibly requires protecting both our shared environment and the rights of indigenous peoples.

And yes, it takes time and the investment of political capital. But governments ought to heed the warning of Jim Prentice, former federal minister of the environment and minister of aboriginal affairs and northern development.

While regulatory fiat may appear to generate immediate results, it ultimately stalls in the face of litigation and lack of social license.

This is not rocket science. We are talking about respect for ecological limits, indigenous peoples, and the rule of law. Processes such as those employed during the enactment of SARA in 2002 can generate goodwill and, ultimately, the social license necessary to operate.

The choice is clear: we can continue to pursue the same failed approaches and the associated risks of judicial review, social disruption and civil disobedience.

Or we can draw upon successful experiences and adopt improved ways of working together for the well-being of the environment and all Canadians.

Ovide Mercredi is former national chief of the Assembly of First Nations. Peigi Wilson, a Métis lawyer and consultant, is former director, environmental stewardship, of the Assembly of First Nations. Will Amos is director of Ecojustice Environmental Law Clinic, University of Ottawa, and was an adviser to former federal environment minister David Anderson. This commentary appeared recently in the Toronto Star.

Note: On July 15, Nunavut MP Leona Aglukkaq replaced Peter Kent as federal environment minister.

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