United Nations report backs First Nations against pipeline megaprojects

Posted on May 12, 2014 in Governance Debates

NationalPost.com – Canada/Politics
May 12, 2014.   Peter O’Neil, Postmedia News

The Harper government, expected by many to approve next month the controversial Northern Gateway oilsands pipeline to the B.C. coast, should “probably” consider blocking the project, the United Nations’ top advocate for the rights of indigenous people said Monday.

“In that particular case the government probably shouldn’t go forward,” said James Anaya, who stressed that he can’t make a firm comment without doing a comprehensive legal analysis of the aboriginal rights that may be jeopardized by the $7.9-billion project.

But Mr. Anaya, whose final report assessing how the rights of Aboriginal peoples are protected in Canada was made public Monday, said his call in the report for the government to obtain “free, prior and informed consent” on all major projects shouldn’t be treated as a call for an unconditional First Nations veto.

He said advocacy groups and non-governmental organizations in Canada and around the world have misinterpreted the UN’s 2007 International Declaration on the Rights of Indigenous Peoples.

That declaration, which Canada conditionally adopted in 2010, says governments should seek to obtain the “free, prior and informed consent” of aboriginal peoples before proceeding with major resource projects.

“There’s a lot of misunderstanding on that,” he told Postmedia News.

“Everybody has a right to consent, but there’s no instrument that says you have a right to block something unilaterally.”

He pointed to his 2013 report which said: “In all instances of proposed extractive projects that might affect indigenous peoples, consultations with them should take place and consent should at least be sought, even if consent is not strictly required.”

Mr. Anaya, an American legal scholar and the UN’s outgoing Special Rapporteur on the Rights of Indigenous Peoples, made the comments after the UN made public his final report Monday.

It is difficult to reconcile Canada’s well-developed legal framework and general prosperity with the human rights problems faced by indigenous peoples

In the report Mr. Anaya, who visited Canada last year, said Canada has a strong legal foundation dating back centuries that respects the rights of Aboriginal peoples. That foundation includes the Supreme Court of Canada’s requirement that governments both consult and accommodate aboriginal interests.

But he pointed to the federal government’s limited success in resolving land claims, reducing poverty, improving education outcomes, and dealing fully with the disappearance and murder of more than 1,000 aboriginal women and girls over the past three decades.

“It is difficult to reconcile Canada’s well-developed legal framework and general prosperity with the human rights problems faced by indigenous peoples in Canada that have reached crisis proportions in many respects,” he wrote.

“Moreover, the relationship between the federal Government and indigenous peoples is strained, perhaps even more so than when the previous Special Rapporteur visited Canada in 2003, despite certain positive developments that have occurred since then and the shared goal of improving conditions for indigenous peoples.”

The report said the government doesn’t have a clear policy to consult with First Nations before allowing major resource projects to proceed.
“There appears to be a lack of a consistent framework or policy for the implementation of this duty to consult, which is contributing to an atmosphere of contentiousness and mistrust that is conducive neither to beneficial economic development nor social peace,” Mr. Anaya wrote in his report.

One of his recommendations calls on the federal government to set a clear policy on consultation and accommodation.

“In accordance with the Canadian constitution and relevant international human rights standards, as a general rule resource extraction should not occur on lands subject to aboriginal claims without adequate consultations with, and the free, prior and informed consent of, the indigenous peoples concerned.”

Mr. Anaya’s report listed numerous major natural resource initiatives across Canada which, according to aboriginal leaders he met, pose “great risks” to their communities.

In B.C. they included the proposed Kinder Morgan and Enbridge oilsands pipelines to the B.C. coast, the Site C hydroelectric dam project on the Peace River, gas drilling and pipeline construction in northeastern B.C. on Treaty 8 nations’ traditional territory, and the attempts by Taseko Mines and Fortune Minerals to build mines on unceded traditional First Nations territory in B.C.

Aboriginal Affairs Minister Bernard Valcourt cited in a statement Monday the report’s complimentary references to Canada’s track record in protecting aboriginal peoples’ rights.

“The report published by the Special Rapporteur today acknowledges that, while many challenges remain, many positive steps have been taken by the Government of Canada to improve the overall well-being and prosperity of Aboriginal people in Canada.

The statement also said resource projects should be seen in a positive light.

“The responsible development of our natural resources is good for all Canadians and provides an unprecedented opportunity for First Nations.

“In fact, over 32,000 First Nations people are employed in the natural resources sector, making it the largest private employer of First Nations people in Canada.

“Over $650 billion worth of major projects are projected in the next ten years and First Nations communities are well positioned to benefit from these opportunities.”

From the Vancouver Sun

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