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Canada has nothing to gain, and much to lose by ignoring the land rights of Indigenous peoples

    February 01, 2013

    Community hearings into the proposed Northern Gateway Pipeline wrap up this week in Vancouver. As an international human rights organization with strong roots in communities across Canada, Amnesty International wanted to be part of this process to emphasize that whatever the mandate of this specific review, all decisions about resource development affecting the lands of Indigenous peoples must uphold domestic and international protections for their rights. Even more than this, we wanted to demonstrate that respect for the human rights of Indigenous peoples is matter of urgent priority for Canadian society and for the example that Canada sets for the world.

    More than 600 major resource development projects are planned across Canada in the coming decade. In northern British Columbia alone, in the region that would be crossed by the proposed Northern Gateway Pipeline, 100 major projects in mining, forestry and other industries are currently underway or under development. The vast majority of these projects would affect lands and waters of continued cultural, economic, political and spiritual importance to First Nations, Inuit and Métis peoples

    The rights of Indigenous peoples to use and benefit from their traditional territories, and to be full participants in all decisions affecting those lands, are protected by the Canadian Constitution, set out in historic and contemporary Treaties, and affirmed in a broad body of international human rights standards that Canada has committed to uphold. Governments, government agencies, and quasi-judicial processes like environmental reviews have an unavoidable legal obligation to respect and uphold these rights.

    Canadian courts have long been clear that Constitutional rights must be protected in resource licensing decisions, regardless of whether such protection is explicitly required by the specific legislation governing these processes. In 1994, for example, the Supreme Court said that the National Energy Board – the federal body that reviews pipeline applications - must interpret and apply its governing legislation “in accordance with the dictates of the Constitution” including the Constitutional affirmation of Indigenous rights.

    Because the rights of Indigenous peoples are Constitutionally-entrenched, the legal standard of protection is necessarily high. Canadian courts have said that protection of Indigenous rights is “a national commitment” and “an underlying constitutional value.” The Supreme Court has said that governments “cannot cavalierly run roughshod over Aboriginal interests.” There must be “reconciliation” in which the perspectives of the state and Indigenous peoples are both given “equal weight.”

    International human rights standards similarly call for the rigorous protection of Indigenous rights. Over the last thirty years, these standards have evolved through the interpretations of regional and international human rights bodies and through the adoption of new instruments such as the 2007 United Nations Declaration on the Rights of Indigenous Peoples. Over this time, there has been clear consensus on the importance of Indigenous peoples’ relationship to the land as the foundation of their health, well-being and cultural survival, and of the high standard of precaution that this requires in all decision-making.

    When it comes to resource development that could affect the lands and waters of Indigenous peoples, the appropriate and necessary standard, as set out in the UN Declaration and the rulings of international human rights bodies, is that decisions should only be made with the free, prior and informed consent of the affected peoples.

    Canadian law does not require specific legislation to give legal effect to international human rights standards. It is assumed that governments intend to comply with their international obligations. Federal cabinet directives expressly require all departments and agencies “to respect Canada’s international obligations in areas such as human rights.” And Canadian courts have used international human rights standards as “relevant and persuasive sources” to interpret domestic laws.

    The federal government has said that environmental reviews are part of how it meets its obligations toward Indigenous peoples whose lands may be affected by resource development. Last year, in legislation adopted as part of the two omnibus budget bills, the government granted itself broad discretion to determine which projects will be reviewed under federal jurisdiction. It also specifically excluded pipelines from such reviews. Those reviews that are still carried out will be more limited in scope and duration with greater restrictions on public participation. Critically, all federal reviews will be limited to making recommendations that the government can heed or reject as it wishes.

    Indigenous peoples’ organizations and environmental groups have rightly protested these changes as drastically undermining environmental protection in Canada. It’s also important to bear in mind that, as worrisome as these changes are, they do not diminish the government’s underlying legal obligations toward Indigenous peoples. By further reducing the likelihood that Canada’s obligations will be properly addressed in the approvals process, the government is not “streamlining” the process: it is simply pushing more of the issues into the courts.

    It is a fundamental breach of government responsibility to force Indigenous peoples to resort to more costly and prolonged litigation just to have their rights respected. It also runs counter to the desire of many Canadians who, as eloquently demonstrated by public comments before the Northern Gateway Panel, want a new relationship with Indigenous peoples based on reconciliation and respect for human rights. 

    Craig Benjamin is campaigner for the Human Rights of Indigenous Peoples, Amnesty International Canada

    This Opinion Piece ran in the Vancouver Sun, on February 1st, 2013.