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 that would 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), [2004] 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.

http://e-activist.com/ea-action/action?ea.client.id=1770&ea.campaign.id=...

For further information contact Beth Berton-Hunter, Media Relations, Amnesty International 416-363-9933 ext. 332 bberton-hunter [at] amnesty [dot] ca

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Ottawa says yes to Enbridge’s Northern Gateway pipeline

Cecilia Jamasmie – http://www.mining.com/ottawa-says-yes-to-enbridges-northern-gateway-pipe...

17 June 2014

Northern Gateway is set to open Alberta’s oil sands industry to Asia’s oil-hungry markets.

Canada’s federal government has given Enbridge’s controversial Northern Gateway pipeline the green light to proceed in what was the final legal hurdle for the project first submitted for permits in May 2010.

Greg Rickford, Canada’s Minister of Natural Resources, announced the approval with conditions.

“In December 2013, the Joint Review Panel found that construction and operation of the Northern Gateway Pipelines project is in the public interest, subject to 209 conditions being met by the proponent,” said Rickford in a news release.

“After carefully reviewing the report, the Government accepts the independent Panel’s recommendation to impose 209 conditions on Northern Gateway Pipelines’ proposal.

The $7 billion (and climbing) pipeline, which will transport oil from northern Alberta to a tanker port in Kitimat, on the northern coast of British Columbia, claimed a small victory on December last year. A joint review panel that heard from communities along the proposed route prompted the National Energy Board to approve the project, but with 209 conditions.

Ottawa says yes to Enbridge’s Northern Gateway pipeline

Supporters applauded Ottawa’s decision, which they think will be a boost to the Canadian economy, worth an estimated $300 billion to the country’s gross domestic product over 30 years. The pipeline is also expected to create thousands of new jobs and training opportunities.

Northern Gateway’s long list of opponents, including environmental groups, residents groups, and several First Nations were disappointed.

The pipeline foes say the approval is a major tragedy for B.C.‘s coastline and the Great Bear Rainforest, due to potential oil spills and the difficulty tankers would have navigating the islands of the Douglas Channel.

First Nations groups, known for their fierce opposition to the project since the beginning, reiterated they would challenge the federal decision in court.

Rickford weighed in.

“[Consultations] with Aboriginal communities are required under many of the 209 conditions that have been established and as part of the process for regulatory authorizations and permits.

“The proponent clearly has more work to do in order to fulfill the public commitment it has made to engage with Aboriginal groups and local communities along the route.”

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Canada’s failure to uphold the human rights of Indigenous peoples in its approval of Northern Gateway

BC Assembly of First Nations, First Nations Summit, Union of BC Indian Chiefs, Amnesty International Canada, Canadian Friends Service Committee (Quakers), Chiefs of Ontario, Federation of Saskatchewan Indian Nations, Grand Council of the Crees (Eeyou Istchee), Indigenous Rights Centre, Indigenous World Association, and KAIROS: Canadian Ecumenical Justice Initiatives

19 June 2014

The overall process surrounding the proposed Northern Gateway pipeline has failed to respect and protect the human rights of Indigenous peoples whose lands and waters would be affected by the project. Having reviewed the environmental impact assessment and the positions taken by affected First Nations, as well as the federal and provincial governments, our organizations conclude that this week’s conditional approval of the project by the federal government violates Canada’s legal obligations under both domestic and international law. Unfortunately, these serious concerns were only minimally addressed in the federally commissioned Eyford Report on the broader issue of West Coast energy infrastructure.1

In a Joint Submission to the federal government this March, our organizations pointed out that large-scale resource development and infrastructure projects can have significant impacts on a wide range of human rights. These include rights to health and a healthy environment, the right to culture, the right to equality, the right to livelihood, and Indigenous peoples’ rights to self-determination and to use, control and benefit from their lands, territories and resources.

In decisions potentially affecting the rights of Indigenous peoples, special measures are required. Increased rigor must be applied because Indigenous peoples face a greater risk of harm due to the largely unaddressed legacy of rights violations and ongoing impoverishment and marginalization. Indigenous peoples’ rights are not a barrier to economic development. They provide a principled framework to ensure that development will be carried out sustainably and will benefit Indigenous peoples, rather than compounding injustices they have experienced.

The environmental impact assessment of the proposed Northern Gateway pipeline did not consider fundamental aspects of Indigenous peoples’ rights, such as their title to affected lands – rights that would include the “right to exclusive use and occupation of land” and the “right to choose to what uses land can be put”.2 Such matters were specifically excluded from the Joint Review Panel’s mandate.3

During the review process, the federal government assured the Panel that it would consult with Indigenous peoples on their rights before giving the project final approval. Having failed to do so, the federal government has now called on the project proponent to carry out further consultation as a condition of the government’s approval of the project. It is the Crown alone that has the Constitutional duty to consult and accommodate Aboriginal peoples in regard to their rights and titles.4 It is unclear how meaningful, good faith consultation can take place at this point.

A series of Supreme Court decisions has established a Crown duty to consult with Indigenous peoples whenever considering action that might have an impact on their rights and interests. The objective of such consultation is to ensure that Indigenous peoples’ concerns are “substantially” addressed5 in a timely manner and not after the decision is made. Even before announcing approval of the project, federal ministers had already virtually declared that the government was determined to proceed with the project. 6

The Prime Minister’s special representative on west coast energy infrastructure noted that the Northern Gateway Review Panel did not address Aboriginal concerns.7 Douglas Eyford also criticized Canada’s approach to consultation, calling on the federal government to consider “early engagement to address Aboriginal interests” that may not be dealt with in a regulatory process.8

Critically, however, when dealing with projects on the scale of the Northern Gateway proposal, the government’s obligations go beyond consultation. As described by the Supreme Court of Canada, the Constitutional protection of Indigenous rights requires “full consent of [the] aboriginal nation on very serious issues. This applies as much to unresolved claims as to intrusions on settled claims.”9

International human rights standards, as set out in the United Nations Declaration on the Rights of Indigenous Peoples and the rulings of regional and international human rights bodies, also require a high standard of precaution in all decisions affecting Indigenous peoples’ rights and their lands, territories and resources. In many instances, the standard required is that projects should proceed only with the free, prior and informed consent (FPIC) of Indigenous peoples.

The UN Special Rapporteur on the Rights of Indigenous Peoples concluded in 2013:

Indigenous peoples’ free, prior and informed consent is required, as a general rule, when extractive activities are carried out within indigenous territories. Indigenous consent may also be required when extractive activities otherwise affect indigenous peoples, depending on the nature of the activities and their potential impact on the exercise of indigenous peoples’ rights.10

Canadian courts have made clear that international human rights standards are “relevant and persuasive” sources of interpretation of domestic legal requirements.11 It is presumed that courts will interpret Canadian laws in conformity with international standards.12 Courts have already relied upon the UN Declaration in interpreting Canadian law.13

The federal government also acknowledges that the regulation of resource development should comply with international human rights standards. The Cabinet Directive on Regulatory Management states, “Departments and agencies are to respect Canada’s international obligations in areas such as human rights, health, safety, security, international trade, and the environment. They are also to implement provisions related to these obligations at all stages of regulatory activity, including consultation and notification, as applicable.”14

The need to obtain the free, prior informed consent of Indigenous peoples is not diminished by court statements that Indigenous peoples do not have a “veto.” A “veto” is absolute, arbitrary and unilateral. In contrast, whether as a precautionary measure or as an expression of Indigenous peoples’ right to self-determination and ownership of their lands, FPIC is founded on legally-recognized rights and the risks that these rights could be harmed. As a standard of Canadian and international law, assertions of FPIC are also subject to review by Canadian courts and international human rights bodies.

The federal government has not responded to our Joint Submission and has not taken a human rights-based approach. Canadians concerned about government compliance with domestic and international human rights standards are encouraged to read the joint submission at http://www.ubcic.bc.ca/files/PDF/WesternCanadaResourceDevt_JointResponse.... pdf

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1 Douglas R. Eyford, Forging Partnerships, Building Relationships: Aboriginal Canadians and Energy Development (Government of Canada (Natural Resources), 2013) [“Eyford Report”], http://www.nrcan.gc.ca/sites/www.nrcan.gc.ca/files/pdf/publications/Forg.... For a list of west coast infrastructure projects, see Appendix B.

2 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 166.

3 JRP Report, vol. 2, at 47: “In keeping with its mandate, the Panel has not made any determinations regarding Aboriginal rights, including Métis rights, treaty rights, or the strength of an Aboriginal group’s claim respecting Aboriginal rights.”

4 HaidaNation,supra,para.53

5 Delgamuukw, supra, para. 168.

6 “Ottawa vows oil-sands export route through B.C.”, Globe and Mail (12 June 2014), p. A1.

7 Chris Plecash, “Northern Gateway Joint Review Panel doesn’t address aboriginal concerns, says federal adviser”, Hill Times, December 20, 2013.

8 Eyford Report, at 37 and 53. The Crown must engage early in its duty to consult: Haida Nation, supra, para. 35.

9 Haida Nation, supra, para. 24 (where Supreme Court quotes Delgamuukw, para. 168).

10 Human Rights Council, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya: Extractive industries and indigenous peoples, UN Doc. A/ HRC/24/41 (1 July 2013), para. 84.

11 Reference re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313, at 348.

12 R. v. Hape [2007] 2 S.C.R. 292, para 53.

13 Canada (Human Rights Commission) v. Canada (Attorney General), 2012 FC 445, paras. 351-354.

Simon v. Attorney General of Canada, 2013 FC 1117, para. 121.

14 Treasury Board of Canada, “Cabinet Directive on Regulatory Management”, 1 April 2012, http://www.tbs-sct.gc.ca/rtrap-parfa/cdrm-dcgr/cdrm-dcgr01-eng.asp, para. 30. [emphasis added]