The federal government will not grant veto power to First Nations communities that oppose resource projects on their traditional territory, including the Northern Gateway pipeline, despite a new United Nations report that urges Canadian governments and industry to win aboriginal consent before proceeding with such developments.
In a report released Monday, the UN’s special rapporteur on the rights of indigenous people, James Anaya, said aboriginal Canadians have expressed concerns over a number of proposed resource projects that they fear will pollute their traditional lands, including Enbridge Inc.’s Northern Gateway and Kinder Morgan’s TransMountain expansion.
“The way it’s supposed to work is that whenever these rights are affected, there needs to be consultation and agreement about any decision that would limit those rights in order to, in the end, protect them.” Mr. Anaya said in an interview. “Whenever someone goes onto someone’s land, there needs to be permissions sought and some kind of agreement.”
Ottawa is set to decide on the Northern Gateway project next month, after a National Energy Board review panel recommended it be approved last December albeit with a list of 209 conditions. Prime Minister Stephen Harper is widely expected to approve the Gateway pipeline, despite opposition among First Nations communities along its route and on the B.C. coast. First Nations’ leaders have vowed to launch court actions to challenge any approval.
In responding to the UN report, Andrea Richer, a spokeswoman for Aboriginal Affairs Minister Bernard Valcourt, said responsible development of natural resources is good for all Canadians, including First Nation communities, and noted the resource sector employs 32,000 First Nations people. She said aboriginal communities are “well positioned” to benefit economically from more than $650-billion worth of resource projects planned for the next decade and want to participate.
“Canada does not interpret free, prior and informed consent as providing a veto over legitimate decisions of a democratic and representative government,” Ms. Richer said in an email. “Canadian courts have made it clear Aboriginal peoples do not have the right to veto government decisions made in the public interest.”
That position sets up a potential confrontation with First Nations in British Columbia, many of whom steadfastly oppose the Northern Gateway project and have warned of court challenges and direct action should Ottawa approve it and Enbridge proceed to build it.
Mr. Harper has put a great priority on securing market access to fast-growing Asia for the booming oil sands industry. Sources close to the file in Ottawa expect the government to approve the project but to signal to Enbridge that it needs to win greater acceptance from First Nations communities along the route.
The controversial pipeline project would deliver 525,000 barrels per day of diluted bitumen to an export terminal in Kitimat, B.C., where it would be loaded onto super-tankers to be transported through the stormy waters of the Douglas Channel.
Enbridge declined to get into specifics regarding legal interpretations of the requirements to consult and accommodate, but reiterated remarks last week by CEO Al Monaco that the company’s efforts to win over First Nations are still under way and would continue after the federal ruling. It has said that it has signed agreements for equity participation with 26 First Nations and has already made more than two-dozen changes to its pipeline plans based on meetings with native leaders.
Art Sterritt, executive director of Coastal First Nations, a coalition of nine British Columbia bands opposed to the Northern Gateway project, agrees with Mr. Anaya’s interpretation of requirements for consultation and consent.
“First Nations in British Columbia have many options in front of us and certainly the courts are the preferred option,” he said. “But if the prime minister approved this, and Enbridge tries to ram it through, there will be people out there to stop this until these questions are answered.”
But Tom Isaac, who practices aboriginal law with Osler Hoskin Harcourt LLP in Vancouver, rejected Mr. Anaya’s analysis, saying First Nations do not have the right to veto resource projects. He said Canadian courts have required governments to consult and accommodate aboriginal communities where their traditional lands are affected, but has not required their consent.
SHAWN MCCARTHY AND JEFFREY JONES
OTTAWA and CALGARY — The Globe and Mail
Published Monday, May. 12 2014, 12:50 PM EDT
Last updated Tuesday, May. 13 2014, 5:40 AM EDT