Process must con­sider hu­man rights

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The cur­rent fed­eral sys­tem for re­view and reg­u­la­tion of re­source-de­vel­op­ment pro­pos­als is bro­ken.Not be­cause, as some crit­ics claim, the process is too slow and cum­ber­some, but be­cause in a demo­cratic so­ci­ety, gov­ern­ments sim­ply can­not ig­nore the hu­man­rights im­pli­ca­tions of their de­ci­sions, es­pe­cially in the era of the United Na­tions Dec­la­ra­tion on the Rights of Indige­nous Peo­ples.Al­though the pro­tec­tion of hu­man rights is an ex­plicit con­sti­tu­tional im­per­a­tive, cur­rent fed­eral im­pact-as­sess­ment leg­is­la­tion does not in­clude any di­rect or ex­plicit ref­er­ence to rights pro­tec­tions. This is de­spite the fact that largescale re­source-de­vel­op­ment projects will have pro­found ef­fects on the Indige­nous na­tions whose lands and ju­ris­dic­tions are in­evitably im­pli­cated, as well as for the Indige­nous and non-Indige­nous com­mu­ni­ties that host the work­forces which build and main­tain such projects.And, it is all too clear in the dis­cus­sions with Indige­nous lead­er­ship, that Canada’s gov­ern­ments and pro­po­nents must plan the process at an early stage with Indige­nous na­tions to meet an ex­pec­ta­tion of co-de­ci­sion-mak­ing pro­ce­dures.Part of the pur­pose of as­sess­ments should be to un­der­stand those risks and en­sure that rights are up­held when con­di­tions for pro­ject ap­proval are set out. In fact, how­ever, the re­view pan­els struck to con­duct pub­lic as­sess­ments have been given nar­row man­dates that rou­tinely in­clude in­struc­tion not to even con­sider whether pro­posed projects are com­pat­i­ble with the con­sti­tu­tional pro­tec­tion of Abo­rig­i­nal and treaty rights. The fed­eral power to pro­tect Indige­nous rights is con­sti­tu­tion­ally a power that has been rarely ex­plored and woe­fully un­der­uti­lized.The cur­rent en­vi­ron­men­tal-as­sess­ment sys­tem was adopted with the prom­ise of stream­lin­ing ap­provals. How­ever, as North­ern Gate­way, Trans Moun­tain and many other ex­am­ples show, the fail­ure to fulfil con­sti­tu­tional obli­ga­tions can be fa­tal even to those projects most ac­tively cham­pi­oned by gov­ern­ment.What is ac­tu­ally ac­com­plished by the ex­clu­sion of hu­man-rights anal­y­sis is to add an ex­tra, more costly, and more time-con­sum­ing layer to the process as af­fected com­mu­ni­ties are forced to go to court to ad­dress con­cerns that should have been part of the as­sess­ment in the first place. This is par­tic­u­larly un­fair in re­spect to Indige­nous peo­ples as it puts them in the po­si­tion of bear­ing the en­tire bur­den of en­sur­ing that their rights are up­held. In a le­gal frame­work that is meant to ad­vance rec­on­cil­i­a­tion, this should be the sub­ject of co-op­er­a­tion and part­ner­ship be­tween Indige­nous peo­ples and the Crown.Bill C-69, the pro­posed new im­pact-as­sess­ment leg­is­la­tion cur­rently be­fore the Se­nate, makes some wel­come and im­por­tant steps to­ward in­te­grat­ing hu­man rights into the as­sess­ment process.Pas­sage of the bill would make re­spect for the rights of Indige­nous peo­ples an ex­plicit goal of the as­sess­ment process. If adopted, fu­ture as­sess­ments and gov­ern­ment de­ci­sions would be re­quired to at least con­sider and re­port on the im­pli­ca­tions for Abo­rig­i­nal and treaty rights. The bill would cre­ate space where Indige­nous peo­ples could po­ten­tially ap­ply their own consultation pro­to­cols or con­duct their own as­sess­ments. The leg­is­la­tion would also re­quire that as­sess­ments of so­cial, health and eco­nomic ben­e­fits take into con­sid­er­a­tion the fact that these won’t be the same for ev­ery­one.The lat­ter is a par­tic­u­larly im­por­tant di­men­sion of the pro­posed leg­is­la­tion. Past as­sess­ments have rou­tinely ig­nored the ob­vi­ous point that women have less ac­cess to many of the claimed ben­e­fits of re­source de­vel­op­ment — such as high-pay­ing jobs in the male-dom­i­nated con­struc­tion in­dus­try — but bear a greater bur­den when thepop­u­la­tion surge that ac­com­pa­nies new projects drives up lo­cal prices and in­creases com­pe­ti­tion for ne­ces­si­ties like hous­ing, food and child care. Indige­nous women, in par­tic­u­lar, have long sought to bring greater at­ten­tion to the dan­ger that al­ready high lev­els of vi­o­lence can be fur­ther com­pounded when rapid pop­u­la­tion growth and so­cial stresses out­pace the ca­pac­ity of po­lice and so­cial-ser­vice providers.The gen­der-based anal­y­sis called for in the bill is an op­por­tu­nity to en­sure that such con­cerns can be raised and ad­dressed in the de­ci­sion-mak­ing process. It will be more than a great shame that this im­por­tant safe­guard for Indige­nous women is not made a top pri­or­ity within our shared coun­try.C-69 is not per­fect. While it in­cludes ref­er­ences to the UN Dec­la­ra­tion on the Rights of Indige­nous Peo­ples, it fails to en­sure the true part­ner­ship be­tween the Crown and Indige­nous peo­ples so clearly re­quired in in­ter­na­tional law.That be­ing said, those MPs and sen­a­tors who have focused on the hu­man-rights pro­vi­sions in the bill as a rea­son to op­pose or amend C-69 would take the as­sess­ment process back­wards rather than for­wards. They are ig­nor­ing the lessons of the last decade of court bat­tles.Sara Mainville is a part­ner at Olthuis Kleer Town­shend law firm. The firm acts for Indige­nous peo­ples across Canada. Craig Ben­jamin is an Indige­nous rights cam­paigner with Amnesty In­ter­na­tional Canada.

A block­ade check­point es­tab­lished by the Gidimt’en clan of the Wet’suwet’en First Na­tion has be­come the lat­est flash­point in the de­bate over Canada’s ap­proval process for re­source-de­vel­op­ment projects.

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