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Northern Gateway: Approval Without First Nations Consent Violates International Law

There has been much debate about the federal government’s decision on June 17th to give a green light to the controversial Northern Gateway pipeline project. And there is obviously much more ahead. This will certainly be a summer of discontent in the communities along the pipeline’s proposed route and elsewhere in British Columbia and across Canada; with plans for rallies, protests and blockades already coming together. There is much to come in the courts as well, with several legal challenges already underway and others soon to follow.

There is, to say the least, much fodder for both protests and litigation. And one key issue that will be – and must be – at the centre of all of this is that the decision to go ahead, in the face of widespread opposition from numerous First Nations who are impacted by the pipeline and/or the tanker traffic associated with the pipeline, violates international human rights law. In 2011, 61 First Nations in British Columbia whose traditional territories would be crossed by the pipeline, or who depend on downstream or coastal waters, made it clear that they were opposed to Northern Gateway, which they declared to be a “grave threat” to their culture and to future generations.

The decision to give Enbridge the go ahead runs roughshod over those concerns and ignores that opposition. And in doing so, it violates one of the most important international legal standards dealing with the protection of the rights of Indigenous peoples.

International law recognizes that lands, territories and other resources are fundamental to Indigenous identity, culture, livelihoods, spirituality and way of life; everywhere. At the same time, international law-makers are very aware that Indigenous title and claims to lands, territories and other resources has been and still is disregarded, relentlessly; be it through brutal force, corruption, a complicated maze of bureaucracy and regulation, or simple neglect and contempt.

That is why international human rights law has established the right of free, prior and informed consent (FPIC) as a cornerstone to the protection of the human rights of Indigenous peoples. FPIC is meant to be a shield to the regular, cavalier violations of such key Indigenous rights as those associated with land, resources and culture. It is, in essence, the right that protects other rights.

The 1989 International Labour Organization Indigenous and Tribal Peoples Convention (Number 169) requires that when governments are proposing measures that stand to directly affect Indigenous peoples there must be consultations with the “objective of obtaining agreement or consent.”

More recently, article 32(2) of the UN Declaration on the Rights of Indigenous Peoples, adopted by the UN General Assembly in 2007, obligates states to:

… consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

Canada has not signed on to ILO Convention 169. However, the UN Declaration does apply to Canada. There is a sorry and disgraceful footnote to the Declaration’s history, involving Canada’s aggressive opposition to its adoption when it came before the UN Human Rights Council in 2006 and then the UN General Assembly in 2007. However, the fact that Canada voted against it (with only three other countries joining in that opposition: Australia, New Zealand and the United States) did not change the fact that it was overwhelmingly adopted by the UN and was law. All four recalcitrant governments did eventually change their view and publicly endorsed the Declaration. Canada and the United States were the last to do so, in November and December 2010 respectively.

The principle of free, prior and informed consent has been recognized more widely within international law. For instance, a decade before the Declaration was adopted the UN Committee on the Elimination of Racial Discrimination issued an authoritative interpretation of the Convention on the Elimination of All Forms of Racial Discrimination, that called on states to respect Indigenous peoples’ right of free, prior and informed consent. Many other UN and regional human rights bodies and courts have similarly endorsed and upheld FPIC.

The Supreme Court of Canada has grappled with this as well. Some commentators, and even the government, argue that the Court has gone no further than recognizing a duty to consult with Indigenous peoples. That is not so. The Court has concluded that there is a constitutional obligation to consult with Indigenous peoples and has ruled that when “very serious issues” are at stake that duty to consult does extend to consent. And now there is the Court’s historic and powerful recent ruling in favour of the Tsilhqot’in people in B.C. The Court has much to say about Indigenous peoples, land rights, justice, reconciliation, consultation and consent. That judgement will be of central significance to Northern Gateway.

Under any and all of these legal requirements – constitutional and international – the approach taken to Northern Gateway falls short. The government has said yes to the pipeline, dependent on Enbridge meeting the 209 conditions that were imposed by the National Energy Board following its earlier review. Those conditions include the requirement to conduct further consultations with First Nations on a number of points. But consultations after the decision has been made certainly do not satisfy the requirement of “prior” consent. And prior or after the fact, nowhere does the NEB or the government acknowledge the obligation to go beyond consultations and obtain First Nations consent.

Not only is it unjust and unlawful to ignore the obligation to obtain free, prior and informed consent; it is short-sighted and destabilizing. That is why the International Council on Mining and Metals promotes FPIC. That is why the International Finance Corporation has made it a condition of its lending to corporations when there is potential for “serious, unavoidable impacts.”

For them it is not just about doing good. It is about good business. The government’s decision to approve Northern Gateway in the face of such widespread opposition and without a meaningful attempt to obtain First Nations consent does neither.

It is time to recognize that respecting the right of free, prior and informed consent is in everyone’s interest. Northern Gateway is a necessary place to start.

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Comments

  1. Has there been any threat by any nation and/or corporation that they would be willing to boycott purchasing oil or oil product associated with the Northern Gateway should “the right of free, prior and informed consent” be violated?

  2. Is your conclusion then that any of the 61 bands in BC opposed to the pipeline has an absolute veto on whether the pipeline can go ahead, as their consent is required, over and beyond consultation?

    Would this apply if the oil was shipped by truck on a Provincial highway?

    If consent is not required and only good faith consultation, why are you apparently objecting to a two stage consultation process? Unless the second stage is completely hollow (deal has been approved, no changes considered, etc.) it would seem that action by stages is the best way to address dozens, if not hundreds of stakeholders with various degrees of interest.

  3. You’re a bit harsh on Canada, the United States, Australia and New Zealand for refusing to sign the UN Declaration. Frankly, given that most of the other countries in the world (i) are either governed by their aboriginal populations, (ii) have succesfully killed them off or assimilated them into their broader population, or (iii) will just ignore anything the UN says anyhow, I’m not too inclined too give much weight to what they have to say on the issue. Canada, the United States, Australia and New Zealand are part of a small group of countries who (i) have significant aboriginal populations and (ii) actually take seriously their international legal obligations and who, therefore, have to actually consider the impact of the UN Declaration on their countries.

    On the substantive point, I think there are three important responses to your argument. First, nothing in international or domestic law imposes a broad based aboriginal right to consent, notwithstanding the RECOMMENDATIONS of the Committee on the Elimination of Racial Discrimination. That the interpretation you favour is not reflected in the UN Declaration dealing specifically with the rights of aboriginals is, I think, conclusive on the point.

    Second, the domestic jurisprudence does indeed reflect a limited right to consent, but in very narrow circumstances. If you want to pave an entire tract of land that is subject to an aboriginal title claim, then yes, the Crown’s fiduciary duty may well include getting the consent of the affected First Nation, but I’d suggest that’s probably an uncommon scenario. In you want to build a pipeline through a portion of a First Nation’s traditional territory, but not in a manner that renders the entire territory unusable for use, consent will not be required, but meaningful consultation will be required.

    Incidentally, nothing in Tsilhqot’in changes that. Yes, the court dod note that, where aboriginal title has been established, other seeking to use that land must seek the consent of the title holder. But that’s hardly exceptional, having “title” to land would be meaningful without control over it. However, the court also noted that that right could be infringed provided that such infringement “must be undertaken in accordance with the Crown’s procedural duty to consult and must also be justified on the basis of a compelling and substantial public interest, and must be consistent with the Crown’s fiduciary duty to the Aboriginal group.” Not for nothing, McClaughlin cited Chief Justice Lamer in Delgamuukw to the effect that:

    “In my opinion, the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title.”

    Finally, I agree with James that consulting with First Nations after having given CONDITIONAL approval to the project isn’t inconsistent with the duty to consult. Indeed, it would make no sense to require proponents of a project to undertake the significant efforts (and costs) to engage in such consultation if the project was a no-go for another reason. A two (or more) stage process, with conditional approvals at each step is the only practical manner to implement a project of this magnitude.

    To be sure, the consultation has to be meaningful, i.e., the consultation can’t just be a rubber stamp or a process to go through. But, at this point, there’s no reason to believe that proponents of Northern Gateway won’t engage in subsantive consultation with First Nation bands or that the NEB will consider those conditions satisfied if they don’t. Absent bad faith in the consultation process, the current process allows Canada to satisfy its domestic and international obligations vis-a-vis BC First Nations who may be affected by the Northern Gateway project.

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