Approval of Northern Gateway Pipeline violates human rights: Amnesty International calls on federal government to reverse decision
The federal government’s decision to conditionally approve construction of the Northern Gateway Pipeline without the consent of affected First Nations violates crucial human rights protections under both Canadian and international law.
Northern Gateway is intended to transport a daily average of 525,000 barrels of oil sands bitumen and industrial chemicals between Alberta and the British Columbia coast. The majority of First Nations whose traditional lands would be crossed by the proposed project have publicly opposed the pipeline, as have First Nations who depend on the downstream rivers and coastal waters that could be affected by construction or a future spill.
In statement released today, 23 First Nations thatwould be affected by the project, and 8 First Nations organizations from the region, denounced the federal government's decision as a violation of their rights and laws.
“The conditions applied to the approval of the Northern Gateway project fall far short of the rigorous standard of protection of Indigenous rights required under Canadian and international law,” said Craig Benjamin, Amnesty International Canada's Campaigner for the Human Rights of Indigenous Peoples. “In dealing with proposals of this magnitude, the best way to protect Indigenous rights is to ensure that any decisions about such serious matters are made only with Indigenous peoples’ free, prior and informed consent. The federal government’s failure to respect this standard should concern anyone who cares about human rights.”
The Supreme Court of Canada has said that all decisions that could affect the rights of Indigenous peoples require a process of prior, meaningful and good faith consultation -- both to understand Indigenous peoples’ concerns and ensure that these concerns are appropriately accommodated. On “very serious issues” the Court has clearly said that this legal obligation could mean that projects must be rejected if they don’t have the “full consent” of affected Indigenous peoples.
International human rights standards, including the UN Declaration on the Rights of Indigenous Peoples, have also clearly set out free, prior and informed consent as a vital protection for the human rights of Indigenous peoples. International human rights law is recognized as a persuasive source of interpretation of Canadian law, including the Canadian Constitution. Canadian courts have said, unless a Canadian law is expressly and unequivocally intended to be inconsistent with international law, any interpretation of Canadian laws that would put Canada in violation of its international human rights obligations must be rejected.
Federal officials described the environmental review of the Northern Gateway project as one of the primary ways that the government would uphold the rights of Indigenous peoples who may be affected by this project. However, many critical Indigenous rights concerns -- including those related to unceded Aboriginal land title in British Columbia -- were deliberately placed outside the mandate of the project review. Despite assurances given during the review, the federal government has still not carried out meaningful consultation on these issues.
In today's decision to approve the project, the federal government called on project proponent Enbridge to meet 209 conditions recommended by the Joint Review Panel, many of which included further consultation with First Nations. The federal government gave no indication of any role that it would play in such consultations or how fundamental issues excluded from the review process would now be addressed.
During the review process, Amnesty International was among many organizations that raised the need to protect human rights. Earlier this year, Amnesty International joined with three Indigenous peoples’ bodies from British Columbia – the Assembly of First Nations BC, the First Nations Summit, and the Union of BC Indian Chiefs – as well as Indigenous and non-Indigenous organizations across Canada in a joint submission to the federal government outlining some of the key human rights obligations that have been ignored or undermined in the regulatory process.
“The economic benefits claimed for projects like Northern Gateway do not justify setting aside fundamental human rights protections,” said Craig Benjamin. “We expect all governments everywhere to respect human rights and the rule of law. Canada is not an exception.”
Background; Consent and “Veto”
In the debate around Northern Gateway and other proposed large-scale development projects, government officials and project proponents often quote the Supreme Court as having said that Indigenous peoples do not have a “veto” over proposed development projects on lands to which they have asserted, but not yet proven, title.
In the view of Amnesty International, and many expert organizations and individuals with whom we have worked, this use of Supreme Court jurisprudence is fundamentally misleading.
In the same Supreme Court decision relied on for the rejection of an Aboriginal “veto”, the Court also said that the mandatory duty of consultation and accommodation can sometimes include an obligation to obtain the “full consent” of affected Indigenous peoples depending on the seriousness of the issues. Furthermore, the court also said, “These words apply as much to unresolved claims as to intrusions on settled claims.” (See Haida Nation v. British Columbia (Minister of Forests),  3 S.C.R. 511, 2004 SCC 73.)
In our view, a requirement to proceed only with consent, when this requirement is based on a well-founded understanding of the rights at stake, the importance of these rights, and the risk of harm, is not the same thing as a “veto,” which implies a decision that is arbitrary, unilateral and absolute.
For further information contact Beth Berton-Hunter, Media Relations, Amnesty International 416-363-9933 ext. 332 firstname.lastname@example.org