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First Nations say UNDRIP should mean end of Site C dam, Energy East pipeline

In December 2013, Council of Canadians chairperson Maude Barlow stated that it was an honour to stand with Ellen Gabriel and support the Declaration by the Kanien’kehà:ka Kanehsatà:ke Territory to oppose the Energy East pipeline.

The Council of Canadians supports the First Nations that say Canada’s endorsement of the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) should mean the end of the Site C hydroelectric dam on Treaty 8 territory and the Energy East pipeline project that would traverse the traditional territory of 180 Indigenous communities.

Article 32 in UNDRIP states that “Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories.” And free, prior and informed consent, which is a key principle in UNDRIP, requires that Indigenous peoples are consulted in a way that ensures a process free of manipulation, conducted well in advance, and with all necessary information provided.

The Dawson Creek Mirror News reports, “A day [after the Canadian government said it was fully endorsing UNDRIP], Chief Roland Willson of the West Moberly First Nations and Chief Lynette Tsakoza of the Prophet River First Nation said in a joint news release the move was ‘a hypocrisy in the making’. …First Nations in the Peace insist that adopting the principals of UNDRIP without stopping Site C in its tracks amounts to little meaningful action towards the feds aspirations for Indigenous reconciliation. ‘Anything short of stopping Site C is confirmation that Canada’s adoption of UNDRIP is nothing short of a hypocrisy in the making’, the two First Nations said.”

The article notes, “The nations added that the federal government wants to ‘wrap up consultation’ on the project, ‘without even responding” to their request for a moratorium on permits until a final resolution of their court challenges is completed.’ While work on the dam falls under provincial jurisdiction, permits were required from the federal transportation and fisheries ministries, because the project is situated on a navigable river which contains fish.”

Grand Chief Stewart Phillip has stated, “With no less than three court cases underway in which First Nations, farmers and others oppose federal and provincial approvals of Site C, the federal government can slow down or halt the project outright by simply refusing to issue permits that must be in place in order for major works in the river to proceed. Contractors for B.C. Hydro cannot divert water and place millions of tons of fill into the river without first obtaining permits from the Fisheries and Transportation ministries.”

And CBC reports, “Ron Tremblay, Grand Chief of the Wolastoq Grand Council, is at the United Nations this week in New York. He believes the declaration will give Aboriginal communities veto power over contentious resource projects including the [Energy East] pipeline, which would transport crude oil from Alberta to New Brunswick. …The Grand Council, which says the homeland of the Wolastoqewiyik takes in all of New Brunswick as well as parts of Maine and Quebec, came out in opposition of the pipeline earlier this year.”

Other First Nations that oppose the Energy East pipeline – or that have stated inadequate consultations have taken place – include Treaty 3, the Assembly of Manitoba Chiefs, the Kanehsatà:ke Mohawks, the Assembly of First Nations Quebec and Labrador, the Iroquois Caucus, and the Chiefs of Ontario.

This view of a UNDRIP veto is supported by various law professors.

CBC adds, “If the government follows through on its plan to enforce the UN declaration through law, it’s clear that Indigenous communities would have the power to halt resource projects, according to Larry Chartrand, law professor at the University of Ottawa. ‘If they don’t want to go along with the project at the end of the day they can say no and that’s the equivalent of a veto’, said Chartrand. The Constitution includes a duty to consult Aboriginal Peoples, but it doesn’t go as far as a duty for consent. Enacting the UN document would ultimately give more power to Indigenous Peoples on development decisions, said Chartrand.”

And the Toronto Star notes, “As University of Ottawa law professor Amir Attaran puts it, First Nations already have stronger rights in this country than anything envisioned in a symbolic UN declaration.”

Significantly, CBC also notes, “Pam Palmater, associate professor and Chair in Indigenous governance at Ryerson University, says First Nations in Atlantic Canada already live on unceded lands and have the power to say no to resource projects. ‘We have always had a veto, but Canada and the provinces have violated our rights for so long, they forget their own laws’…”

The Tyee reports that Errol Mendes, a University of Ottawa law professor and editor of the National Journal on Constitutional Law, says, “Even where the First Nations own the land the [Supreme Court of Canada has] said in certain circumstances a veto would not be able to stop development if certain conditions were satisfied.” He adds that a compelling public interest in going ahead with a project can outweigh the need for consent. That said, there is not a “compelling public interest” argument to support the construction of the Site C dam or the approval of the Energy East pipeline.

Council of Canadians chairperson Maude Barlow says, “We support Indigenous peoples’ right to free, prior and informed consent. They are the rightful stewards of their lands, and should be the ones to decide if and how they are developed. We recognize and respect First Nations’ decisions to ban tar sands pipelines and large hydro-electric dam projects from their territories. We call on the Canadian government to do the same.”