Harper’s economic policy may be threatened by his aboriginal policies

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Stephen Harper has built an economic policy that's heavily-based on resource projects, but his aboriginal policies might put it at risk.

The UN's special rapporteur on indigenous peoples lent his weight Monday to First Nations who want more of a say in resource projects. But his report also underlines how many of those projects, and how much of Stephen Harper's economic agenda, already depend on the Crown's relationship with First Nations.

So when James Anaya, the UN rapporteur, reported that there's a lack of trust between the federal government and aboriginal people, he's not just taking Mr. Harper to task for failing to communicate. It amounts to a warning that the PM's economic plans hinge on it.

The Conservative government's relationship with First Nations is in tatters. The recent resignation of Assembly of First Nations national chief Shawn Atleo is a symbol: he was forced out by chiefs angry that he seemed playing ball with the mistrusted Harper Tories.

But at the same time, there's never before been a prime minister whose economic policy was so centred on resource projects that run through aboriginal communities, like the Northern Gateway pipeline to carry Alberta bitumen to West Coast tankers.

Mr. Anaya's report points to that project, and lists 15 others – pipelines, mines, dams, fracking operations, and so on – that he says should not go ahead without the consent of the First Nations affected. That's a statement of a non-binding international standard: the UN Declaration on the Rights of Indigenous People, which Canada signed in 2010, says resource projects on aboriginal lands should not go ahead without their informed consent.

But he also noted Canada must fulfill a constitutional "duty to consult" – the legal principle that will be enforced by the courts. And that's where Mr. Harper's strained relationship with First Nations will have a real impact on his economic agenda.

The "duty to consult" doesn't go as far as requiring the consent of First Nations to any project that might infringe the rights they claim, noted University of British Columbia aboriginal law professor Gordon Christie. But it does mean the Crown – the federal government – has to consult aboriginal communities and accommodate their legitimate concerns, like changing the route of a pipeline to go around particularly sensitive land.

It's not entirely clear what the limits of that are. Is it possible, for example, that coastal First Nations in B.C. could claim their rights would be irreparably harmed by a possible oil spill by tankers loading from the Gateway pipeline, that no pipeline can go ahead? Mr. Christie said the courts haven't settled that question yet.

But there is, in the way the courts have framed the "duty to consult," a clear suggestion that the Crown has to make the relationship work. They've used key phrases like "meaningful consultation" and "good-faith negotiation," but many aboriginal communities feel the government has mainly tried to get around the serious talk, Mr. Christie said, That could give the courts legal grounds to block a project.

Another problem is that Ottawa has often left the consultations in the hands of the companies' backing the projects, like Enbridge, the promoter of the Northern Gateway pipeline. But courts might not accept the efforts of a company to accommodate a First Nation, when it's the government's duty.

In the case of Northern Gateway, the government has belatedly scrambled to show its consulting, but it could be too little, too late. The federal government is likely to approve the project in the next month or so, but then it will be tied up in complex legislation – and there's no guarantee that Enbridge, or Ottawa, will win. The question isn't whether Ottawa will approve the pipeline, but whether it will ever get built.

It all might have been made a lot easier if Ottawa has taken it more seriously from the beginning, and won some sympathy in aboriginal communities.

Instead, the federal government's attitude was seen as aloof. The Conservatives have always insisted that those projects themselves will be the best thing for aboriginal communities – more important, they implied, than treaty and land-claims talks that many First Nations wanted to discuss. Their economic-development message has sometimes been tone-deaf – as when Joe Oliver, then the natural resources minister suggested the money from resource projects would fix "socially dysfunctional" aboriginal communities.

Now, this is a government struggling to counter built-up ill will, trying to make deals with far more wary chiefs, and show, belatedly that it's engaging in the kind of "meaningful consultation" the courts require. It's doing that in the context of the broader mistrust that Mr. Anaya reported. And Mr. Harper may find his economic policy threatened by miscalculations in aboriginal affairs.