UN Report on Canada’s Relationship with Indigenous Peoples

Yesterday the United Nations Special Rapporteur on the Rights of Indigenous Peoples, James Anaya (University of Arizona College of Law), released his Report on Canada. The Report discusses all of the issues mentioned in an earlier post, in addition to many others.

One that has gained particular attention is the consultation process between tribes and the federal government regarding extractive and development industries on tribal land. The Report encourages using the “free, prior, and informed consent” international standard (para 98). In Canada, the Supreme Court found that there is a requirement of consultation in Haida Nation v. British Columbia (para 7). There are, however, multiple issues with these standards, two of which I am particularly interested in.

First, who has the duty to consult? The relationships established by treaties is between tribal nations and the British Crown and/or Canadian government. Public lands are governed by provincial governments. At this point, Canada has no standard consultation protocol, and the industries themselves are often conducting the consultation meetings (para 74) and long after the projects are moving forward (para 71), a clear conflict of interest.

Second, both standards in practice (consent and consultation) do not leave room for an absolute refusal. What happens when the answer after consultation is simply no, or there is no consent? The right to say no to industry development must be an option for the standards to have any meaning.

A list of projects of concern to Indigenous Nations listed in the Report (para 73):

The Enbridge Northern Gateway pipeline from Alberta to the British Columbia coast;

The Kinder Morgan Trans Mountain pipeline twinning project;

The New Prosperity open pit gold and copper mine in unceded Tsilhqot’in traditional territory, which was twice rejected by an environmental assessment panel;

The Fortune Minerals open-pit coal mine permit, which issued over 16,000 hectares of unceded traditional territory of the Tahltan Nation in British Columbia;

The Liquid Natural Gas pipeline and drill wells in northern British Columbia in Treaty 8 nations’ traditional territory;

Site C hydroelectric dam on the Peace River affecting Treaty 8 nations;

The Athabascan oilsands project, which is contaminating waters used by the downstream Athabasca First Nation;

The Platinex project in Kitchenuhmaykoosib Inninuwug (KI) First Nation traditional territory, in which a lack of prior consultation resulted in bidirectional litigation and the imprisonment of community leaders for mounting a blockade to protect their lands; and subsequent deals to withdraw KI lands from prospecting and mining development without consultation with the KI nation;

Clean-up, remediation and compensation process for six bitumen oil spills resulting from steam injection extraction in Cold Lake First Nation traditional territory, a remediation process that has included draining a lake;

Two proposed hydroelectric dams affecting the Pimicikamak nation, despite implementation failures of the Northern Flood Agreement that was intended to mitigate the effects of the last hydroelectric dam that flooded and eroded their lands;

The re-opening of a Hudbay nickel/gold mine in Mathias Columb First Nation traditional territory without consultation with, consent of, or benefits sharing agreement with that nation;

The construction of the Fairford and Portage Diversion water-control structures, and the 2011 lack of imminent flood protection, flooding, and relocation of Lake St. Martin First Nation;

Approval of the construction of the Jumbo Glacier Resort in an unceded area of spiritual significance to the Ktunaxa Nation;

Authorization of forestry operations in Mitchikanibikok Inik (Algonquins of Barriere Lake);

Setting the percentage of the salmon fishery allocated to aboriginal uses (social and commercial) without consultation with affected First Nations;

Seismic testing for natural gas “fracking” extraction in Elsipogtog First Nation traditional territory.

With Victoria Sweet, MSU ILPC Fellow.

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