Northern Gateway: Federal government must respect the fact that First Nations have already said 'no'
Last week’s court decision on the proposed Northern Gateway Pipeline provides a crucial opportunity for the federal government to fulfil its promise to uphold the human rights of Indigenous peoples.
On June 30, the Federal Court of Appeal overturned the 2014 Cabinet decision to allow construction of the massive oil sands pipeline. The court concluded that the decision-making process fell “well-short “ of long-established legal standards for the protection of Indigenous rights in Canada.
The court has called on the federal government to undertake a new consultation process with First Nations to address critical issues of Indigenous concern, such as the project’s impact on Indigenous land title, resource rights, and governance. The court said that these matters had been given only “brief, hurried and inadequate” consideration before the project was approved.
Given the serious concerns that Indigenous peoples have repeatedly raised about Northern Gateway, Amnesty International is renewing our call for the federal government to respect the right of First Nations to say no to this project.
The federal government should also review other decisions by the previous government – such as the approval of the Site C hydro-electric dam – where important Indigenous concerns were similarly excluded from full and meaningful consideration in the decision-making process.
Finally, the federal government must correct these serious deficiencies in its current review of the environmental assessment process. The decision-making process around large-scale resource development projects must ensure full and effective protection of the rights of Indigenous peoples.
The Trudeau government has publicly committed to upholding the rights of Indigenous peoples under the Canadian Constitution and international human rights standards such as the UN Declaration on the Rights of Indigenous Peoples.
The Supreme Court has already established (in the ground-breaking Delgamuukw and Haida Nation decisions) that where there is potential for serious harm, some projects may need to be rejected if they don’t have the consent of the affected Indigenous peoples.
This standard of protection is consistent with the requirement of free, prior and informed consent under international law, including the UN Declaration, which the Trudeau government has said it will implement without conditions.
The previous government had excluded many key issues, such as Indigenous land title and governance rights, from consideration or discussion during the environmental assessment of Northern Gateway. Although the government promised that it would return to these issues in a “phase IV consultation” after the assessment was completed, these consultations were rushed and superficial, leaving many key issues unconsidered or left out of the official consultation record meant to inform cabinet’s decision.
In last week’s ruling, the court also noted that the federal government’s decision to approve Northern Gateway included no explanation of whether or not the government believed it had met its legal duties toward Indigenous peoples, or if these duties had even been considered. The court called this omission “troubling and unacceptable.”
Amnesty International had intervened in the court case to emphasize the high standard of rights protection meant to be provided by processes of consultation, accommodation and consent. We would like to thank Colleen Bauman of Goldblatt Partners and Justin Safayeni of Stockwoods LLP, who so ably represented our positions before the court.