In December 2019, British Columbia passed Bill 41, becoming the first Canadian province to enshrine the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) into law. Given that Article 32 of UNDRIP grants Indigenous peoples, “the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources,” one might expect industrial development disputes with Indigenous nations to be handled differently from now on. The recent tensions over Wet’suwet’en opposition to the Coastal GasLink pipeline project — advanced by the company TC Energy — provide an opportunity for the government to show that they are committed to the aims of Bill 41, though it is clear in cases of resources or territories that the bill operates within an ineffectual grey area.

In light of Bill 41’s implementation, why has Wet’suwet’en opposition not been enough to block the proposed pipeline in unceded Wet’suwet’en territory? Article 32 of UNDRIP requires states to consult and cooperate to obtain “free and informed consent” of Indigenous peoples affected by such projects. However, provincial and Indigenous leaders have confirmed that Bill 41 does not amount to a veto, and that consent is about engaging in “good-faith” consultation and cooperation. This certainly raises the question of how such consultation would take place if communities block projects on their territory. Moreover, the B.C. government has insisted that Bill 41 neither creates new laws nor confers veto powers upon the First Nations in B.C., casting further doubt on what the bill would accomplish. 

Further narrowing the utility of Bill 41, Article 32 states that governments must cooperate “with the Indigenous peoples concerned [with projects that may affect their land or resources] through their own representative institutions.” These institutions may include hereditary leaders, groupings of Indigenous nations working together at a tribal level, or others. The Coastal GasLink conflict exemplifies the problem with identifying these representative institutions: while four out of five elected Wet’suwet’en band councils along the route of the project support the pipeline project, eight Wet’suwet’en hereditary chiefs fervently oppose it. These band councils were created by the federal government under the colonial Indian Act, giving them limited authority to manage reserves, but no legal authority to enter into agreements regarding projects on traditional lands off-reserve. Yet, both government and industry often “focus primarily or exclusively” on Indian Act band councils in negotiations and consultations. This is likely why Premier John Horgan maintains that the project has received the consent of the legal representatives of the Wet’suwet’en. With such decisions valuing band councils over hereditary chiefs, the Wet’suwet’en hereditary chiefs have denounced the pipeline project for dividing the Wet’suwet’en community and undermining the authority of hereditary chiefs. If representative institutions are open to the interpretation of the provincial government, they can simply choose who they want to negotiate with, avoiding meaningful implementation of UNDRIP. 

In response to the backlash, the province sent the Minister of Indigenous Relations and Reconciliation to meet with the hereditary chiefs. However, no resolution followed, leading TC Energy to issue a statement that they would resume their construction activities and enforce their injunction, actions which have led to several RCMP arrests of Wet’suwet’en protesters. This seems to address the question of how the government and industry would proceed if they do not receive the “free and informed consent” stipulated by UNDRIP. While TC Energy has also reached out to the hereditary chiefs, the hereditary chiefs maintain that they prioritise meeting with key decision-makers in the provincial and federal government, who have thus far not engaged with them. 

B.C. made history by legally recognising UNDRIP through Bill 41, yet may have created false expectations for the Indigenous peoples who thought it would affirm their right to self-determination. It is indeed critical to legally recognise the articles laid out by UNDRIP, but if such recognition does little to practically empower the Indigenous communities in B.C., it seems the province is committed to following the declaration in letter but not in spirit. As the provincial government continues to side with Coastal GasLink over Wet’suwet’en land defenders, it is clear that Bill 41 has yet to constructively impact engagement with Indigenous nations.