Northern Gateway decision a turning point in indigenous relations
This article originally posted in The Hill Times July 7, 2014
By John Dillon
In announcing its approval for the Northern Gateway pipeline, the federal government said that Enbridge “has more work to do to engage with aboriginal groups.” This passing off of responsibility to the pipeline’s sponsor does not release the government from its responsibility to properly consult the First Nations affected.
If we are ever to achieve reconciliation and a respectful relationship with indigenous peoples, Ottawa must respect indigenous peoples’ rights to free, prior, and informed consent when resource extraction or transportation projects are first conceived, as affirmed by the United Nations’ Declaration on the Rights of Indigenous Peoples.
In rejecting the government’s approval of the Gateway pipeline, more than 30 First Nations and groups declared: “Our inherent human rights are constitutionally enshrined, judicially recognized and embodied in international legal instruments including the United Nations’ Declaration on the Rights of Indigenous Peoples.”
Indeed, Sec. 35 of the Constitution established the government’s obligation to consult aboriginal peoples, and the Supreme Court of Canada has established, in the landmark Haida and Delgamuukw cases, that on very serious issues “full consent” of the affected First Nations is required. In the case of Northern Gateway, the threat to indigenous rights and livelihood is indeed a very serious issue. A rupture of the pipeline would devastate lands and waters.
First Nations’ concerns are well-founded. An open letter signed by 300 Canadian scientists found the conclusions of the Joint Review Panel on Northern Gateway indefensible on several grounds. They object to the fact that key negative effects from the extraction of bitumen, including climate change, were excluded from consideration. The scientists noted how the panel relied on Enbridge’s own contention that the consequences of an oil spill would not be widespread or permanent, even though it acknowledged uncertainty about the behaviour of diluted bitumen in the marine environment.
An indigenous elder told me that in exercising their right to free, prior and informed consent, indigenous peoples will always take into consideration the impacts on all concerned—humans and other living beings and generations to follow. Hence, indigenous resistance to the extraction and shipping of bitumen from the tar sands strives to take into account the impact on all living creatures whose existence is imperilled by climate change.
In a commentary on the UN Declaration, James Anaya, former UN special rapporteur on the Rights of Indigenous Peoples, explains that the only time consent may not be required is when activities will not have a substantial impact on Indigenous rights. Governments on occasion may limit indigenous rights for a valid public purpose. But according to the rapporteur, “such a valid public purpose is not found in mere commercial interests or revenue-raising objectives, and certainly not when benefits from the extractive activities are primarily for private gain.”
The Government of Canada failed to properly consult First Nations when the Gateway project was first proposed. Giving responsibility to the Joint Review Panel or to Enbridge in no way fulfills its obligation to properly consult and acknowledge indigenous peoples’ right to free, prior and informed consent.
Federal approval of the Northern Gateway Pipeline and the consequential fallout may very well be key turning points in how Canadians and indigenous peoples come together to decide on resource projects, factoring in the needs and rights of all, not only the commercial interests of resource companies. If this doesn’t stimulate greater appreciation for indigenous rights, we can likely expect more legal challenges and opposition to resource development in the future. And with good reason.
John Dillon is Ecological Economy Program Coordinator at KAIROS Canada in Toronto.
Copyright: The Hill Times