New Brunswick anti-fracking protests

By Craig Benjamin, Campaigner for the Human Rights of Indigenous Peoples

Amnesty International is following with concern the police and government response to anti-fracking protests by the Elsipogtog Mi’kmaq Nation in New Brunswick.

Like so many disputes around the lands and resources of Indigenous peoples in Canada, this conflict could have been avoided by a rigorous commitment on the part of government to respect and uphold the rights of Indigenous peoples as set out in Canadian and international law.

Three fundamental principles must be observed.

First, governments in Canada must work with Indigenous peoples to ensure that  land disputes do not continue to linger on as a source frustration and injustice, but are instead resolved in a fair and timely manner consistent with international human rights standards such as the UN Declaration on the Rights of Indigenous Peoples. Critically, while disputes remain unresolved governments must abandon their business as usual approach that they have the sole authority to use and dispose of the lands in question, but instead commit to working collaboratively with the affected Indigenous peoples with the goal of reaching mutually acceptable interim arrangements.

Second, consultation around specific development proposals must be meaningful and in good faith. This means there can be no predetermination that projects will go ahead regardless of legitimate concerns raised by the affected communities.

Third, whenever the proposed projects have the potential for significant impacts on the cultures, livelihoods, health and well-being of Indigenous peoples, or where legitimate questions remain unresolved about the extent of the possible impacts, government must comply with the internationally established standard of free, prior and informed consent or FPIC. As a precautionary principle,  FPIC helps safeguard the rights of Indigenous peoples from bad decisions imposed without their involvement. Just last week, the UN Special Rapporteur on the Rights of Indigenous Peoples reminded governments in Canada that FPIC is generally required whenever large scale resource development project are being considered that could have an impact on the rights of Indigenous peoples. Shale gas fracking on or near the traditional lands of Indigenous peoples is clearly an example where the safeguard of FPIC is required.

Finally, in regard to policing of protests,  it is important to be mindful that while police have an obligation to protect public safety and respond to criminal offences, they also have a clear responsibility to respect and protect human rights.  Police must respect the right of peaceful protest and assembly and act to protect the lives and safety of those involved in protests. Use of force must always be a last resort and the scale and nature of the force deployed must be in proportion to the need to protect public safety. Critically, police should not be called on to enforce legal claims of governments or corporations where the foundations of these claims is legitimately in question.

Lessons have been learned from previous tragic instances of failing to respect those rights in times of protest.  The 2007 report from the Ipperwash Inquiry in Ontario lays out an important rights-based framework for policing in contexts such as the situation unfolding at Elsipogtog.   From Ipperwash to Elsipogtog; we cannot let those lessons be forgotten.

Photo credit: Robert Devet, Halifax-Media Coop