OPINION: Libs, NDP divided on 'consent'

What could turn out to be one of the defining issues in the upcoming provincial election is coming into view, and it's not one of the usual topics.

No, I'm not referring to things like promises to increase spending on such big-ticket items such as health care, education or social services. The two major parties will both promise increased spending in their platforms, although the amounts may vary greatly (the NDP will undoubtedly promise more, but likely not by huge amounts, with the possible exception of a universal daycare program).

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Even issues such as housing affordability and fighting crime don't represent huge fault lines between the two major parties, and I doubt the issues of political fundraising or ending the grizzly bear hunt are going to be big vote-shifters.

But consider this question: should First Nations possess "consent" over any law or "administrative measure" that may affect them, no matter if a duly elected provincial and/or federal government wants to enact such a law or measure?

The B.C. Liberals and the NDP have starkly different positions on this issue, which has emerged to the forefront because of the United Nations Declaration of  the Rights of Indigenous Peoples.

The declaration is aimed at strengthening the human rights and cultural protection of indigenous peoples, but it contains some controversial clauses that some (though certainly not all) argue give First Nations a de facto "veto" over pretty much everything that may affect them (such as any resource development, such as the Trans-Mountain pipeline expansion, LNG projects, mines, dams etc.).

The declaration specifically mentions "consent"  as something that is required for First Nations to give before something that affects their community proceeds.  Lawyers seem to interpret the true meaning of this language in different ways, with some arguing it bestows onto First Nations "veto rights" on all kinds of things, while others reject that argument and insist any First Nations would have to win a court ruling that clearly grants them true consent.

 As I pointed out here some weeks back, the federal Liberal government has backed away from full implementation after promising to do so during the last federal election. Their retreat is linked to concerns over those potential veto provisions, and the constitutional nightmares they may create.

In any event, NDP leader John Horgan has pledged to embrace and adopt the entire declaration (he disagrees it creates that veto), while Premier Christy Clark agrees with much of the declaration but has said there is no way her government would adopt resolutions that grant any such veto, which in her words would allow a small community to dictate the economic policies of the majority.

The two leaders could not be further apart on an issue that will play out differently in different parts of the province.  It will also reveal the divide that exists among First Nations themselves when it comes to things such as resource development, and how the issue of "consent" can be confusing for some of those projects.

For example, a majority of First Nations directly affected by the PNW LNG project actually support it, but a much smaller number is opposed. However, media coverage leaves the impression of wholesale opposition, which simply isn't true.

So can a minority of First Nations trump the majority of First Nations when it comes to the concept of "consent" for something? And what about such things as overlapping claims by First Nations, which could create a scenario where one band okays a development but another opposes it?

To say this a complicated, emotional and potentially divisive issue is an understatement.

I'll leave it to Clark and Horgan to argue the fine points of this issue come the next election, and I suspect it will be Clark who tries to exploit it as a campaign issue more than Horgan.

But make no mistake, they'll certainly be talking about the UN declaration.  It has enormous implications for the provincial economy and on government rights, be they First Nations, municipal, provincial or federal.

Aside, perhaps, from whether the government budget should be balanced every year (the NDP seems to be ready to stray from that concept), there is a much wider gulf between them on this issue than most others.

 Keith Baldrey is chief political reporter for Global B.C.

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