Decision-makers in Canada have both an opportunity and a responsibility to set positive examples of respect for the rights of Indigenous peoples
This week, on February 1, Amnesty International will make an oral presentation to the environmental assessment panel that is reviewing the proposed Northern Gateway Pipeline. We are doing so, despite significant concerns about the process, because we believe it's important to take this opportunity to continue to emphasize the need for all decisions about resource development to respect and uphold the human rights of Indigenous peoples.
Amnesty International has worked alongside Indigenous communities across Canada and around the world. All too often, we have seen how resource development projects carried out against their wishes and without rigorous protection of their rights can lead to devastating impacts on their cultures, economies, health and well-being.
We feel strongly that decision-makers in Canada have both an opportunity and a responsibility to set positive examples of respect for the rights of Indigenous peoples. We know that the rest of the world often looks to Canada for models of legislation and regulation. Canada’s actions can raise or lower the bar for human rights protection internationally. Nowhere is this more evident than in the area of resource development, where Canadian companies are often are the leading edge of extractive projects around the globe.
The Northern Gateway Project is intended to transport heavy oil sands crude and industrial chemicals between Alberta and the British Columbia coast. Federal officials have acknowledged that they have a duty to consult with Indigenous peoples along the route of the proposed and said that they will meet this obligation primarily through the environmental assessment process.
However, many Indigenous peoples' organizations have been critical of the Joint Review because Indigenous peoples were not involved in determining its scope and mandate and because there is no distinct process to consider unique issues of Indigenous rights. Although the federal government has said that it will carry out further consultations as necessary to address any issues that fall outside the review panel’s mandate, there has been no clarity about how the federal government will determine the need for such consultations, or how it would carry them out.
While the review has a mandate to consider cumulative impacts, it is not looking at the impacts that would result from increased oil sands production on the traditional territories of Indigenous peoples in Alberta.
Critically, the Joint Review panel can only make recommendations: ultimately, the federal and provincial governments will make their own decisions about whether or not the project will go ahead.
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. This is a duty that flows from the Constitutional affirmation of Aboriginal and treaty rights. In other words, it is part of the highest law of the land.
Canadian courts have also been clear that the purpose of such consultation is to allow reconciliation between the rights of Indigenous peoples and the interests of the state, by "substantially accommodating" Indigenous interests, and in some cases, by going ahead only with their consent.
In the case of the Northern Gateway review, the body that is prepared to engage with Indigenous peoples does not have the power to require changes to the project, or to prevent its going ahead, if this is what is required to accommodate the rights of Indigenous peoples. Instead, the decision-making power rests solely with governments that have demonstrably attached greatest importance to expanding resource development than they have to the protection of Indigenous rights.
On the eve of the first community hearings into the Northern Gateway proposal, the federal Minister of Natural Resources issued an open letter in which he characterized the approvals process for resource development projects as "slow, complex and cumbersome", resulting in delays that block projects that are in the national interest.
Over the course of the year, the federal government passed sweeping changes to environmental protection laws, giving itself greater latitude to rely on the typically less rigorous assessments carried out by provincial authorities, and expanding the circumstances under which the federal government can approve projects without any environmental impact assessment at all.
These changes, introduced without meaningful consultation with Indigenous peoples, have sparked protests across the country under the banner of Idle No More. This movement, initiated and led at the community level by Indigenous women, has identified the changes to environmental legislation as a direct threat to the environment and their rights.
Amnesty International itself takes no position either for or against resource development per se. However we do believe strongly that human rights must always be protected at every stage of the decision-making process. This includes protections for the human rights of Indigenous peoples.
International human rights bodies have long recognized the fundamental importance of secure access to lands and a healthy environment as an indispensable prerequisite for Indigenous peoples' enjoyment of other basic human rights, including rights to health, livelihood, culture and identity. Accordingly, instruments like the UN Declaration on the Rights of Indigenous Peoples, and a much wider body of international law, requires a rigorous standard of protection to safeguard Indigenous peoples' relationship to the land.
When it comes to resource development projects that could have a significant impact on the lands of Indigenous peoples, international human rights standards clearly require that projects only go ahead only with free, prior and informed consent of Indigenous peoples. In other words, the people who will face the greatest impact should be the ones to make the decision.
The majority of First Nations whose traditional lands would be crossed by the proposed Northern Gateway pipeline have opposed the project, as have First Nations who depend on the downstream rivers and coastal waters. In December 2011, 61 First Nations with territory in the largest watershed on the proposed pipeline route issued the Save the Fraser Declaration (www.savethefraser.ca) which denounced the proposed pipeline as a “grave threat” to “our laws, traditions, values and our inherent rights as Indigenous peoples.”
Because there is clearly no free, prior and informed consent, Amnesty International has taken the position that the proposed Northern Gateway Project should be rejected. This is a position grounded in international human rights law. And it's one that we believe should be supported by the government, by the public and by the review panel.
As a signatory of international human rights treaties, and an active, often central participant in the development of related human rights instruments and mechanisms, Canada has made a clear commitment to the defense of human rights at home as well as abroad.
This is not only a moral commitment: it's also a legal obligation. The Supreme Court of Canada has said that international human rights standards are a relevant and persuasive sources for interpreting Canadian laws. Furthermore the Court has said that Canadian laws must be interpreted in a way that ensures compliance with international obligations. These principles apply to all levels of decision-making, including the review, approval and oversight of resource development projects.
Respect for the right of free, prior and informed consent does not mean the end of resource development. Clearly, many Indigenous nations are prepared to enter into agreements if their rights are respected and protected. What free, prior and informed consent does is ensure that development moves ahead on such a basis of collaboration, partnership and mutual benefit. It also ensures that legal rights are not simply ignored when they're seen as inconveniences.