Process must consider human rights
Politicians against Bill C-69 ignoring lessons of past decade of court battles, Sara Mainville and Craig Benjamin say
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 the
population 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.