Justice minister apologizes for comments that 'potentially eroded' trust with Indigenous peoples

OTTAWA — Justice Minister Sean Fraser apologized Wednesday for recent comments about the federal government’s duty to consult First Nations regarding developing projects on their territories, saying his words “potentially eroded a very precarious trust.”

The issue has emerged in light of Prime Minister Mark Carney’s plan to introduce legislation that would fast-track approvals for major energy and infrastructure projects by cutting the timeline to two years from five.

The Assembly of First Nations, a national advocacy organization representing more than 600 First Nations across the country, has expressed concerns that, from what they have seen of the forthcoming bill, it “suggests a serious threat” to First Nations treaty rights.

In a recent letter to Carney, National Chief Cindy Woodhouse Nepinak cited the United Nations Declaration on the Rights of Indigenous Peoples, which outlines the principle of obtaining “free, prior, and informed consent” regarding laws and decisions that affect Indigenous people.

The federal government adopted the declaration into law in 2021 and has committed to ensuring its laws abide by it.

Securing “free, prior, and informed consent” from Indigenous people is, according to a Justice Canada backgrounder, a principle that “ builds on and goes beyond the legal duty to consult,” as stipulated under section 35 of the Constitution, which the courts have upheld in many cases involving development projects on First Nations territory. 

When asked about that principle on Tuesday, Fraser outlined his interpretation of it, telling reporters that it demands “a very deep level of engagement and understanding of the rights that may be impacted.”

However, he said, “it stops short of a complete veto” when it comes to government decisions.

On Wednesday, Fraser apologized for those comments, saying it gave some the impression of the government wanting to “ work unilaterally, not in partnership,” with Indigenous people. 

“Despite innocent intentions, I think my comments actually caused hurt and potentially eroded a very precarious trust that has been built up over many years to respect the rights of Indigenous people in this country,” he said on his way into the Liberal caucus meeting.

Fraser said he should have rejected the “premise” of even discussing the declaration in terms of veto power.

“The UN declaration, when it comes to free, prior and informed consent, is about establishing a process based on respect and partnership and as between the Crown and Indigenous Peoples. I think sometimes the conversation falls into a frankly dangerous trope that paints a false picture of Indigenous Peoples as being anti-development somehow.”

After making his initial remarks, Fraser said he had a call with Woodhouse Nepinak after she reached out, “expressing her frustration.”

The minister said he apologized to Woodhouse Nepinak and committed to doing so publicly.

“This is completely on my own initiative.”

“I’ve not been asked to do this by anyone. (Woodhouse Nepinak) said that she would appreciate if I would offer some clarity. But this is not coming from anyone within government. This is something I feel compelled to do.”

A request for comment from the Assembly of First Nations has yet to be returned.

Carney has pledged that his government’s legislation to fast-track major infrastructure projects would “mandate” that meaningful consultation has to happen with Indigenous people.

Premiers received an outline of what to expect from the legislation when they met with Carney and other federal ministers in Saskatoon on Monday.

They left the meeting in agreement on what the criteria should be to approve whether a project would fall in the category of being in the “national interest,” which includes Indigenous participation being among the requirements.

Woodhouse Nepinak told National Post in an interview earlier this week that the Assembly of First Nations needs to see the full text of the bill to analyze it legally.

She added that the federal government must also consult with individual First Nations, not just the national organization.

A letter sent by the Privy Council Office to the organization late last month says upholding the constitutional duty to consult as well as the United Nations Declaration on the Rights of Indigenous Peoples and the commitments around modern treaties and self-government, “will be integral to this proposed legislation and the success of this nation-building moment in Canada.”

Our website is the place for the latest breaking news, exclusive scoops, longreads and provocative commentary. Please bookmark nationalpost.com and sign up for our politics newsletter, First Reading, here.