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United Nations: Canada needs indigenous consent for pipeline projects

Government failing in constitutional duty to consult First Nations when development affects their land, says UN report

Canada’s government should not proceed with mega-pipeline projects unless it gets the consent of First Nations peoples whose land could be affected by such development, a United Nations report released Monday said.

James Anaya, the U.N. special rapporteur on the rights of indigenous peoples, said in the report that Canadian Prime Minister Stephan Harper’s government has failed in its duty to consult and accommodate indigenous peoples before developing natural resource programs – including the controversial Alberta tar sands project.

This “leads to an atmosphere of contentiousness and mistrust,” Anaya said.

The special rapporteur listed two tar sands pipeline projects — Enbridge's Northern Gateway from Alberta to the British Columbia coast and Kinder Morgan’s Trans Mountain — at the top of a list of development projects from which aboriginal leaders said they had been largely excluded.

The special rapporteur said that during his fact-finding mission last year he “repeatedly heard from aboriginal leaders that they are not opposed to development in their lands generally and go to great lengths to participate in such consultation processes as are available, but that these are generally inadequate … and usually take place at a stage when project proposals have already been developed.”

This “creates an unnecessarily adversarial framework of opposing interests, rather than facilitating the common creation of mutually beneficial development,” Anaya said.

The Athabasca tar sands project in Alberta province was listed as a development that indigenous peoples said they feel poses great risks to their communities, and about which they feel their concerns have not been heard or addressed.

The Athabasca First Nation told Anaya that the tar sands project is contaminating waters used by the downstream band. A December 2013 report said scientists found a more than 7,300-square-mile ring of land and water contaminated by mercury surrounding the project.

While indigenous peoples have much to potentially gain from resource development in their territories, they also face the highest risks to their health, economy and cultural identity in the case of environmental degradation, the report said.

It said that Canada’s 1982 constitution was one of world’s first to enshrine indigenous peoples’ rights, as it contained provisions to protect aboriginal title and treaty rights, as well as culturally important activities.

Numerous Supreme Court cases have affirmed First Nations rights to fishing, hunting and accessing their lands for cultural and economic purposes. Any development projects that could affect their ability to use the land for those reasons would require meaningful dialogue.

But many indigenous leaders told Anaya they felt they were not being adequately consulted about projects that could impact their ability to live off the land.

This has resulted in a “strained” relationship between the federal government and indigenous peoples, the rapporteur said.

Some Canadian indigenous people have also attempted to assert their treaty rights through a nationwide protest movement called Idle No More.

“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,” Anaya said in the report.

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