Amnesty International was represented in this case by Justin Safayeni, Colleen Bauman, and Naomi Greckol-Herlich.
WHAT IS THIS CASE ABOUT?
In June 2014, the federal cabinet approved Enbridge Inc.’s construction of twin pipelines to allow heavy bitumen to be transported from the Alberta oil sands to the British Columbia coast for shipping abroad. The federal decision was based on an environmental assessment that found the project would not have serious impacts. Further, the environmental assessment review panel found that whatever dangers existed were justified by the public interest in the project’s contribution to economic growth. The panel review, the cabinet decision, and resulting certificates permitting the project to go ahead were challenged in 18 separate cases brought by eight First Nations and three other organizations. The cases were consolidated on a number of issues.
The federal government did not directly consult with affected First Nations while the project proposal was being developed. The government stated that it would primarily rely on the environmental assessment process to fulfil its consultation obligations towards Indigenous peoples. However, the government imposed terms of reference on the process that prevented consideration of whether Indigenous people had ongoing rights claims concerning the land in question; the effect the project would have on resolving disputes over land title and jurisdiction; and whether the obligation to consult and accommodate had been adequately discharged. The government committed to hold consultations with First Nations after the environmental assessment process. However, the consultations consisted of single meetings which had no impact on the decision-making process. Ultimately, the final decision made by the federal cabinet to approve the project relied entirely on the environmental review report.
AMNESTY INTERNATIONAL’S INTERVENTIONS
During the environmental assessment process, Amnesty International appeared before the review panel to provide oral submissions regarding Canada’s international human rights obligations and commitments towards Indigenous peoples in the context of the Northern Gateway Pipeline project. However, international law was overlooked in the review panel’s conclusions. As a result, we requested to intervene before the Federal Court of Appeal so that international human rights could help the Court’s analysis of the case.
In Amnesty International’s submissions to the Federal Court of Appeal, we argued that international law plays a critical role in assessing whether an environmental assessment was conducted reasonably or correctly, and in interpreting Canada’s constitutional duty to meaningfully consult with and accommodate Indigenous peoples affected by the Northern Gateway Pipeline project. We detailed how the relevance of international law stems from general principles of statutory interpretation, the role of international law in constitutional interpretation, the honour of the Crown, and the congruency between Canada’s international obligations and its domestic rights framework.
Following our detailed submissions on the relevance of international law to the case, Amnesty International argued that international law requires a high standard of protection for the Indigenous rights affected by the Northern Gateway Pipeline project. International law also requires that Indigenous peoples be allowed to meaningfully participate in decision-making potentially affecting their rights. These obligations include protecting and accommodating Indigenous institutions and traditional systems of decision-making; making genuine, good faith efforts to reach a mutual agreement with the aim of protecting human rights; and, where the potential for harm from a proposed project is significant, obtaining the free, prior, and informed consent of the affected Indigenous peoples.
STATUS OF THE CASE
The Federal Court of Appeal determined that the approval of the Northern Gateway Pipeline was unreasonable because Canada’s post-review “consultation process was unacceptably flawed and fell well short of the mark”, and “failed to maintain the honour of the Crown.” The court found that
Canada failed … to engage, dialogue and grapple with the concerns expressed to it in good faith by all of the applicant/appellant First Nations. Missing was any indication of any intention to amend or supplement the conditions imposed by the Joint Review Panel, to correct any errors or omissions in its Report, or to provide meaningful feedback in response to the material concerns raised. Missing was a real and sustained effort to pursue meaningful two-way dialogue. Missing was someone from Canada’s side empowered to do more than take notes, someone able to respond meaningfully at some point.
Because of these inadequacies, the Federal Court of Appeal ordered that the certificates approving the Northern Gateway Pipeline Project be quashed and sent back to the Governor in Council to re-determine whether the project should be approved following a process of adequate, meaningful consultation with affected Indigenous peoples.
On 20 September 2016, both the government of Canada and Northern Gateway Pipelines Inc. announced that they would not appeal the Federal Court of Appeal’s decision. Canada is reviewing its options, including re-starting the process in a way that meaningfully consults and collaborates with affected First Nations.
In an earlier challenge to the pipeline brought before the provincial courts in British Columbia, the British Columbia Supreme Court also ruled that the provincial government “abdicated” its Constitutional obligations by giving up provincial authority to impose conditions on the proposed project. Without such authority the province could not meaningfully accommodate the rights of affected First Nations, even on issues that the government of British Columbia itself had conceded were serious concerns. The court ruled that the provincial government must consult with First Nations about he potential impacts of the Northern Gateway Pipeline “on areas of provincial jurisdiction” and “how those impacts are to be addressed in a manner consistent with the honour of the Crown and reconciliation.”
“Important victory in ongoing Northern Gateway struggle” (14 January 2016)
“Behind Amnesty International’s decision to oppose Northern Gateway” (14 July 2014)
“Resource development in western Canada: Indigenous rights must be respected” Joint Statement (10 April 2014)
“Northern Gateway report sidesteps crucial Indigenous rights concerns” (20 December 2013)