Pipelines and Indigenous land rights: An urgent matter of Canada’s national interest
Thousands of Canadians have asked for the opportunity to express their views to a public review of the proposed Enbridge oil sands pipeline across central British Columbia to the Pacific Coast. This extraordinary display of public interest has caught the attention of the federal government.
In an open letter posted to his department’s website – just as the public hearings were about to begin -- the Canadian Minister of Natural Resources, Joe Oliver, defined the export of oil sands crude to new markets in Asia as "an urgent matter of Canada’s national interest" and complained that opponents are "stacking public hearings… to ensure that delays kill good projects."
While the Minister is careful to state that the regulatory system must be "fair, independent, and consider different viewpoints including those of Aboriginal communities," the clear implications of his letter are a) that the government had already made up its mind to support the proposed pipeline and b) that the government believes that hearing from everyone who has concerns about the pipeline will simply delay a project that would otherwise get under way much sooner.
In a joint response from the BC First Nations Summit, the BC Union of Indian Chiefs and the BC Assembly of First Nations, Grand Chief Ed John states, "Federal politicians advocating for and promoting the proposed Enbridge project before the environmental review commences puts the entire review process in jeopardy. We question how the three National Energy Board panelists, who were appointed by the federal government, can fairly review this proposal when the Prime Minister and Minister of Environment openly promote what they perceive as the necessary outcome?"
The Natural Resources Minister has been saying for some time that his government wants to streamline the review process to "get these projects approved." This quotation is from a Globe and Mail article from November.
What about projects that should never be approved? In every instance, the government has a clear obligation to ensure that fundamental human rights are protected before any project is approved. A thorough public review process is meant to provide credible public assurance that projects will only proceed if the potential social and environmental harms have been appropriately weighed and addressed . But the government’s obligations don’t end there.
In any project with the potential for serious impacts on the rights of Indigenous peoples, the free, prior and informed consent of those peoples is an essential, indispensable prerequisite. Without this consent, the projects should not go ahead.
The standard of free, prior and informed consent is now well-established. So well established, in fact, that the private investment arm of the World Bank has adopted a policy not to lend to projects like pipelines that do not have the free, prior and informed consent of Indigenous peoples whose rights would be affected. The Supreme Court of Canada has also recognized that there instances where projects should only proceed on the basis of consent in order to protect Constitutionally protected Aboriginal and Treaty rights.
Respect for the right of free, prior and informed consent is necessary to ensure that Indigenous peoples can engage in decision-making on the basis of genuine collaboration -- and to end the long history of ignoring or dismissing Indigenous peoples in decisions that deeply affect them.
Upholding this right is a cornerstone to the long overdue reconciliation with Indigenous peoples. And that most certainly is an urgent matter in Canada’s national interest.
Respect for the right of free, prior and informed consent is also necessary to fulfill Canada’s obligations under an international human rights system that needs the support of countries like Canada. This is also an urgent matter in Canada’s national interest.
In the case of the Enbridge pipeline proposal, it’s clear that the project does not have the consent of large numbers of First Nations communities whose rights are affected. Back in March 2010, more than 28 First Nations in British Columbia called for a halt to the Northwest Gateway pipeline project. This includes First Nations whose traditional lands would be crossed by the pipeline as well as First Nations concerned about the potential impact on the downstream rivers and the coastal waters on which they depend.
The Yinka Dene Alliance, a group of five First Nations that have strongly opposed the pipeline, have also reacted to the Minister’s suggestion that opposition to the pipeline is being financed and manipulated by foreign interests.
"We're not foreign - these are our lands," Chief Larry Nooski of Nadleh Whut'en First Nation said in a public statement. "First Nations people are so opposed to this pipeline that we're pulling money out of our own pockets and community members are doing everything that we can so that our voices are heard."