Northern Gateway report sidesteps crucial Indigenous rights concerns
In recommending that the federal government approve the proposed Northern Gateway pipeline, the Joint Review Panel which assessed the project has ignored crucial protections for Indigenous rights set out in both the Canadian Constitution and international human rights law.
The Northern Gateway Project is intended to transport heavy oil sands crude and industrial chemicals between Alberta and the British Columbia coast.
The majority of First Nations whose traditional lands would be crossed by the proposed pipeline have opposed the project, as have First Nations who depend on the downstream rivers and coastal waters.
In a report released on December 19, the Joint Review Panel established to carry out an environmental impact assessment recommends that the project be approved subject to 209 conditions, many of which include requirements for further consultation with First Nations.
However, if such “consultation” is based on the premise that the project will proceed regardless, it will not meet the standard of human rights protection required by Canadian and international law.
The Supreme Court of Canada have repeatedly stated that there is a mandatory minimum legal duty for governments to carry out meaningful, good faith consultations with Indigenous peoples prior to any decision with the potential to affect their rights. Canadian courts have also been clear that the purpose of such consultation is to "substantially” accommodate Indigenous interests.
This requires decision-makers to be prepared to abandon proposals where significant concerns cannot be addressed. Furthermore, where there is potential for serious harm to Indigenous rights, the Courts have said that projects may require the consent of the affected Indigenous peoples.
These requirements of Canadian law are bolstered by international human rights standards that require the free, prior and informed consent of Indigenous peoples for any project with the potential to cause significant harm to their rights.
Amnesty International has taken the position that -- given the scale of the project, and the potential for serious impacts on Indigenous peoples’ use of the land -- the proposed Northern Gateway Project must not be approved over the objection of First Nations.
While the report of the Northern Gateway Review acknowledged that the issue of consent was raised by First Nations, the Review Panel never addresses this issue.
The decision on whether the Northern Gateway project should proceed is now in the hands of the federal Cabinet. Unfortunately, the Joint Review Panel report has provided little guidance on the legal framework of rights and obligations on which this decision must be based.
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