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Free, prior, and informed consent is a bare minimum

As the toll of the tar sands on Indigenous communities grows, Canada continues to fail in its obligations to UNDRIP

On aerial images of the Peace-Athabasca Delta, the largest freshwater inland river delta in North America, even a casual observer can see the rapid growth of Alberta’s tar sands development and tailings ponds over the past few decades. The irregularly-shaped – almost scaly – greyish-white, black, and brown patches where boreal forest and river delta have been ripped from their moorings to make way for extraction resemble the menacing blooms of cancerous cells in a biopsy of human tissue. It’s a resemblance that is fitting. The tar sands and their tailings ponds, which seep into the groundwater, poisoning the water, poisoning the fish, poisoning the building blocks of life itself, have been directly linked to increased rates of rare, deadly cancers in the predominantly Indigenous communities in the region. 

For more than half a century the governments of Canada and Alberta have been engaged in a program of for-profit environmental pollution and destruction that ultimately comes at the expense of all life that shares these polluted areas. The most immediate and significantly impacted victims of the financially lucrative and environmentally apocalyptic Athabasca tar sands are the Indigenous peoples who have lived since time immemorial in the Athabasca watershed. This watershed is a vast and sprawling expanse that includes the boreal forest and the Rocky Mountains, now home to the ever-expanding malignant growth of the tar sands and tailings ponds.

Watch the Council of Canadians and Keepers of the Water speak on the past and present of tailings.

The government’s position on oil sands development and tailings has become increasingly indefensible over time

The development of the oil sands has always been in violation of the treaty and inherent rights of the Denesuline (Chipewyan), Woodland Cree, Métis, and other Indigenous peoples who have long called the watershed home. These peoples have their own sovereign systems of laws, governance, environmental management, cultural practices, and protocols regarding diplomacy with other Nations which Canada has always disregarded. The Canadian government’s continued deference to industry at the expense of the lives and livelihoods of Indigenous peoples and communities has caused Canada to fall increasingly out of step with international law and with the government’s own stated commitments to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Most significantly, these actions are in violation of Article 19 of UNDRIP: the right to free, prior, and informed consent (FPIC). At a recent symposium hosted by the Council of Canadians and the Keepers of the Water, Daniel T’seleie, a K’asho Got’ine Dene Outreach Coordinator with Keepers said, “Canada’s approach to Indigenous rights is really premised on a very outdated, antiquated, colonial approach and does not meet the international standards.”

UNDRIP is not a gold standard for how colonial states must engage with Indigenous peoples, it is a minimum standard. That is, adhering to UNDRIP guidelines, as signatory states like Canada have agreed to do, is the absolute least they can do. Anything less is a gross violation of human rights. And Canada, it seems, is committed to continuing to violate the rights of Indigenous peoples while paying lip service to the principles of UNDRIP.

Free, prior, and informed consent is much more than the duty to consult

Following three Supreme Court cases in the early 2000s (Taku River Tlingit First Nation v. British Columbia, Haida Nation v. British Columbia, Mikisew Cree First Nation v. Canada) that found that the Crown had failed in its duty to consult with Indigenous people before approving projects that would disrupt their lands and livelihoods, the federal government began two national engagement processes with First Nations, Inuit, and Métis communities in order to develop duty to consult guidelines and consultation protocols. While these protocols require the government to meet with Indigenous communities that will be impacted by a proposed project (the Canadian government determines which communities it considers to be impacted), explain the project, receive feedback, and attempt to mitigate possible negative effects, it does not require the consent of Indigenous peoples in order to proceed with a given project even if impacted communities object. Clearly, these protocols fall significantly short of the principles of free, prior, and informed consent.

Free, prior, and informed consent is a key aspect running through many of the articles of UNDRIP and requires states to obtain such consent from Indigenous peoples, who must have access to all information necessary to make an informed decision about any and all decisions that impact them and their territories. Although UNDRIP is not legally binding to states, in 2021 the federal government passed its own legislation intended to ensure its laws and policies must be made consistent with UNDRIP.

So far, the Canadian government has not made any meaningful moves towards compliance with its own law. Recent proposals about what to do with tar sands tailings, including the possibility of dumping treated tailings into the Athabasca River, show how little effort the government is willing to make.

The history of tar sands development and tailings pond growth is a lesson in what free, prior, and informed consent is not

When the world’s first oil sands mine opened in Fort McMurray in 1967, it was opened without consultation or consent from impacted First Nations and Indigenous peoples, even as the development consumed their summer hunting grounds. More expansions would eat up the region over time, disrupting hunting and trapping grounds, the fishery, and the forest. Throughout the development of the tar sands, some First Nations in the area entered – often reluctantly – into agreements and partnerships with the oil industry. For some of these Nations, including Fort McKay (located along the banks of the Athabasca River), the agreements and partnerships have been financially lucrative – benefits that have been used to argue that Indigenous communities have consented to the tar sands, and to justify the staggering social and environmental costs.

But the consent that was given for these projects was not free, prior, or informed. Leaders who entered into these agreements did so knowing that the bitumen mining projects would be going forward with or without their consent, and that these developments would further disrupt the lands they depended on for their livelihoods. The choice they had was not whether the projects would proceed, but whether they could secure an economic future for their communities and the generations to come. And even in the agreements they did make, they did not consent to the blistered and tumour-riddled fish that emit the reek of burning plastic when they fry in the pan, nor to the deposits of selenium, arsenic, cadmium, and methylmercury in the flesh and organs of moose, and the rare and deadly cancers.

By the 1970s, it was already known by industry and the government that the waste products of the tar sands were poisonous. Researchers, who otherwise fully supported the development of Alberta’s oil industry, urged the Alberta government to ensure that the ponds “be more rigidly regulated for: size, location and duration of use.” But the ponds only grew larger along with the oil sands, and the government, with the exception of a few unkept promises, did nothing to manage them. This, despite reports from Indigenous communities about changes in the behaviour of migratory animals and increases in rare cancers and other adverse health effects. Over the past three decades, as the power of industry has grown, Canada and Alberta have become accustomed to the geopolitical influence and “sustained prosperity” – afforded to them through the exploitation of these lands. Simultaneously, the tailings ponds have continued to grow in size consuming enough land that they could cover Vancouver two and a half times over.

Now, after years of Indigenous leaders, communities, and allies raising the alarm about the devastating toll of the poisoned ponds, the scale of the tailings has reached a point where the government can ignore them no longer. Despite their show of commitment to UNDRIP, when it comes to their plan for tailings disposal the federal government has not yet done the work of adequately engaging and seeking the free, prior, and informed consent of Indigenous communities on an issue that has done them harm beyond measure.

It is time to demand the federal government uphold its own laws

The fact that Environment Minister Steven Guilbeault has even raised the prospect of amending the Fisheries Act to allow the release of treated tailings pond water into the Athabasca River demonstrates that the Government of Canada does not, or will not, grasp their responsibility to obtain free, prior, and informed consent from Indigenous peoples before proceeding one step further on the development of regulations regarding the tailings ponds.

Join thousands of Canadians in demanding that the Canadian government uphold its own laws and ensure that any decision about tar sands and tailings ponds is made with the free, prior, and informed consent of impacted Indigenous communities.

Webinar: Tailings and a Just Transition. Nov. 16th @7pm MT

Learn more about how addressing proposed tailings dumping is an opportunity to transition workers and communities towards a more just future for all of us as we ensure that polluters pay for the mess they have made.

Plain language summary

  • Free, prior, and informed consent (FPIC) is a right of all Indigenous peoples and allows them to give or withhold consent at any time on any project that may affect them and their territories.
  • FPIC is part of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which the Canadian government has said Canadian law must comply with.
  • Tar sands and tailings ponds affect the Indigenous peoples living in the Athabasca tar sands region, and these people have a right to give or withhold consent to any decisions that will impact them.
  • The federal government’s proposal to change the Fisheries Act to allow treated tailings to be released into the Athabasca River violates UNDRIP and the principle of free, prior, and informed consent.

Alex Birrell

Alex Birrell is one of the Council of Canadians Communications Officers, specializing in Research and Analysis.