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 for the coming decade. In northern British Columbia alone, in the region that would be crossed by the proposed Northern Gateway Pipeline, 100 major projects 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 decisions affecting those lands, are protected by the Canadian Constitution, historic and contemporary treaties, and global human rights standards that Canada has committed to uphold. Governments and quasi-judicial processes like environmental reviews have an unavoidable legal obligation to 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 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. The rulings of international human rights bodies and instruments such as the UN Declaration on the Rights of Indigenous Peoples set out a clear consensus on the importance of indigenous peoples' relationship to the land as the foundation of their well-being and cultural survival. When it comes to resource development that could significantly affect that relationship, the appropriate and necessary standard, set out in the declaration and repeatedly affirmed by international human rights bodies, is that decisions should only be made with indigenous peoples' free, prior and informed consent.
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." 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 to consult with indigenous peoples. 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. Indigenous peoples' organizations and environmental groups have rightly protested these changes as undermining environmental protection in Canada.
Critically, these legislative changes cannot diminish the government's underlying legal obligations toward indigenous peoples. What they will do, by further reducing the likelihood that Canada's obligations will be properly addressed in the approvals process, is pushes more of the decisions into the courts.
To force indigenous peoples into costly and prolonged litigation just to have their rights respected is a violation of the government's fundamental obligations. 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.
Original Article
Source: vancouver sun
Author: Craig Benjamin
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