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Finding a Place for Climate Migrants

Lauren Weaver is a first-year law student at McGill. She graduated Summa cum Laude with a B.A. in French and International Studies from the University of Oklahoma in 2012 and received her M.A. in French Studies from New York University in 2015. Lauren previously worked as an immigration paralegal at Fragomen, Del Rey, Bernsen & Loewy, LLP. She is a Student Advocate with the McGill chapter of the International Refugee Assistance Project and serves as the External Chair for the Canadian Association of Refugee Lawyers at McGill.

As the effects of global climate change bring extreme weather events, melting ice caps, and rising tides, experts have begun to examine these environmental shifts as risk factors for human displacement and forced migration. Professor Jennifer Leaning asserted that climate issues likely played a role in the current European refugee crisis during her keynote speech at Harvard University’s September 2017 symposium, “Climate Change, Migration and Health.” Following an extended drought in northern Syria that ravaged the agricultural industry, a million people were forced to migrate internally, contributing to the unrest that would eventually become a civil war. However, there are other risks associated with climate change that could potentially lead to forced migration, such as rising sea levels that put entire island nations like Kiribati at risk. Unfortunately, the current framework for status determination in refugee and asylum law was not designed to address these types of migratory situations and leaves entire populations without options for resettlement abroad.

Initially drafted to protect European refugees following World War II, the 1951 Refugee Convention as amended by the 1967 Protocol defines a refugee as:

“A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

Somali refugee camp in Eritrea

This definition makes sense within the postwar context and the aftermath of the Holocaust, which left millions of refugees who had been targeted for religious, ethnonational, and political reasons. The current state of migratory issues, however, differs drastically from that of 1951. While some displaced peoples—such as the Rohingya of Myanmar—are still fleeing persecution based on their status as an oppressed minority, millions more are displaced both internally and externally by civil war, political and economic instability, and most recently by the effects of climate change.

Among the largest risk factors for climate-driven migration are flooding, extreme weather events, and desertification. In the Sahel belt of sub-Saharan Africa, a 90% shrinkage of Lake Chad since the 1960s has contributed to the displacement of 2.5 million people in the region. These changes are exacerbated by the area’s extreme poverty and could lead to increased political instability and conflict over resources. Meanwhile, the government of Fiji has published a list of 60 villages in need of relocation as a result of the rising waters that are slowly eating away at the beaches of the island nation. While displaced peoples in larger countries may be able to relocate internally to escape the most devastating effects of climate change, many more will be forced to leave their home countries altogether for lack of adequate shelter and resources. These people would be ineligible for refugee status, benefits, and resettlement under the current framework administered by the United Nations High Commissioner for Refugees (UNHCR).

Floods in Sahrawi refugee camps in southwest Algeria

The lack of protection under current international refugee and asylum law leaves few options for climate change migrants. Although some developed nations may introduce temporary immigration programs following particularly devastating natural disasters, these will not address the colossal scale of eventual climate migration needs. Migrants may also find themselves uprooted again and forced to return to their home countries, as is the case of the 50,000 Haitian and 200,000 Salvadoran immigrants displaced by earthquakes whose Temporary Protective Status in the United States is set to expire in 2019. In the wake of such migratory crises, experts and activist groups have argued that the 1951 Refugee Convention does not address the full breadth of contemporary displaced migrant populations, and have called for the recognition of climate change as a driver of migration by the United Nations.

Contemporary migration problems, including those driven by climate change, will require a re-examination of how we determine the circumstances under which a person has the right to leave their country of origin and establish a life abroad. Whether the solution is to redefine “refugee” or to set up an entirely new system for climate migrants is unclear. What is clear, however, is that inaction on the part of the international community, particularly industrialized nations, is unacceptable. As the primary contributors to climate change, the industrialized nations have an ethical responsibility to mitigate climate change and its consequences for the developing world. Opening our borders and communities to those who have lost and will lose their homes to climate change is not a kindness or a favor; it is a duty.

Not the Villain: China’s Role in Our Green Future

Zach Morgenstern is a second year law student at McGill. He graduated with an Hon. BSc. in Peace, Conflict and Justice Studies and Ecology & Evolutionary Biology from the University of Toronto. His extra-curricular explorations have led him to participate in, and occasionally explore, environmental issues via campus journalism, community radio, and the Toronto and Montréal folk music scenes.

Tackling global climate change can feel like a hopeless task. One reason for this is the fear that as countries in the Global South pursue First World living conditions, they will inevitably emit large quantities of greenhouse gases. China, as the world’s leading CO2 emitter,[1] (though, far and away, not its leading emitter per capita) and a rising political superpower, particularly factors into this pessimistic fantasy. However, this caricature of China as a polluting, rapid-industrializer, is, at the very least, a gross oversimplification. Chinese President Xi Jinping, after all, has established a longstanding rhetorical commitment to building a nation of “clear waters and green mountains.”[2]

In 2005, China passed the Renewable Energy Law, which amongst other things, requires that energy providers incorporate all possible renewable energy sources into their grids.[3] Since the passage of the act, China has seen notable development in its renewable energy industries, particularly wind, making China the world’s leading producer of wind power. China aspires to produce 20% of its power from renewable sources by 2020.[4] China also has plans to reduce its carbon intensity (emissions per unit of GDP) by 40-45% below 2005 levels by 2020. While this target sounds ambitious, the country had previously set a goal of reducing its carbon intensity by 20% relative to 2005 levels by 2010[5] and it came close to achieving it, reaching a 19.1% reduction.[6]

Chinese policy, however, is not the only basis to question pessimistic visions about the environmental potential of the Global South.  Indeed, the assumption that developing economies are so single-minded that they will industrialize without any concern for climate change ignores the salient conditions that exist in countries like China. According to a Pew poll, Chinese citizens widely view pollution as a matter of national concern: the only issue noted by a greater portion of respondents was corruption.[7] One consequence of this pollution is water contamination. This is a particularly important problem for China given that it has 20% of the world’s population, but only 5-7% of the world’s fresh water supply.[8] While it is apparent that strong evidence about the risks of climate change in the abstract is insufficient to drive governments to take drastic action, mass public exposure to and awareness of the consequences of pollution (the presence of which is often connected with climate change) can pressure governments to pursue meaningful reforms.

Nationalism is another factor that seems to be shaping the Chinese green transition. Former Chinese Premier Wen Jiabao argues that economic crises can be an opportunity for countries to adapt their economies to changing times.[9] He noted that many countries seemed to be ‘going green’ and argued that it would be a shame for China to fall behind on this trend. Nationalistic motivations are not just evidenced in Chinese state rhetoric, but also in its approach to promoting green energy: providing substantial subsidies to domestic companies, requiring that industries (e.g. wind) primarily be populated by domestic companies, etc.[10] China’s nationalist approach could alternatively be described as a socialist one. It is not characterized by hardline, chauvinistic patriotism so much as an approach to economic development that holistically considers the wellbeing of the country. This is illustrated by the fact that China’s 5-year plans have included calls for reductions in growth targets, with Wen explaining that “China must stop sacrificing the environment to wasteful energy use and unsustainable development.”[11] As Professor Zhang Yongsheng argues, China’s status as a developing economy does not necessarily mean that it is just starting on the Western path of emission-heavy development:[12] rather, China and its nationalist and socialist leaders have an opportunity to reimagine development as a green process.

It should be added that Chinese leadership has also clearly indicated its understanding that ecological protection and economic development are not necessarily opposing ends. Xi explains “We will promote green development to achieve better economic performance. I have said for many times that green mountains and clear water are as good as mountains of gold and silver. To protect the environment is to protect productivity.” Again, such perspective is sparked by the salience of pollution’s effects in China. In 2000, 470 000 premature deaths were tied to pollution: it is hard to grow your economy when you are losing your population.[13]

China still has a long way to go before it puts a major dent in the process of global climate change. Nonetheless, if world leaders are to collectively address climate change, it is important that they have faith in the ability of their colleagues, including those who lead rising economies, to contribute. China has a bad environmental reputation, and some of that is deserved, but credit should still be given where it is due. We live in a bleak era. The so-called leader of the free world, President Trump’s United States has withdrawn from the Paris agreement. We now must count on China and President Xi, who has vowed to do the opposite.

[1] “Each Country’s Share of CO2 Emissions” (Nov 20 2017) Union of Concerned Scienists, online: <https://www.ucsusa.org/global-warming/science-and-impacts/science/each-countrys-share-of-co2.html#!>.

[2] Sam Geall, “Clear Water and Green Mountains: Will Xi Jinping Take the Lead on Climate Change?” (Nov 16 2017) Lowy Institute, online: <https://www.lowyinstitute.org/publications/clear-waters-and-green-mountains-will-xi-jinping-take-lead-climate-change>

[3] Barbara Fimore, “China Renews Its Commitment to Renewable Energy” (Feb 1 2010) Natural Resources Defence Council, online: <https://www.nrdc.org/experts/barbara-finamore/china-renews-its-commitment-renewable-energy>.

[4] Andrew B. Kennedy, “China’s Search for Renewable Energy: Pragmatic Techno-Nationalism” (2013) 53:5 Asian Surv p 909 at 909.

[5] Justin V. Remains & Junfeng Zhang, “Environmental Lessons from China: Finding Promising Policies in Unlikely Places” (2011) 119:7 p 893 at 894.

[6] Jane Qiu, “China Announces Energy-Saving Plans”  (Mar 14 2011), online: <http://www.nature.com/news/2011/110304/full/news.2011.137.html>

[7] Remains & Zhang at 893.

[8] Geall.

[9] Kennedy at 916.

[10] Ibid at 920.

[11] Qiu

[12] Yongsheng Zhang, “Can China Achieve Green Growth?” in Ross Garnet, Cai Fang, and Ligang Song eds. “A New Model for Growth and Development” (Action: Australia National University Press, 2013) 267 at 274.

[13] Remains & Zhang at 903.

MJSDL at COP 23 in Bonn, Germany

Jared Miller is a second-year law student at McGill University Faculty of Law and an Associate Managing Editor with the McGill Journal of Sustainable Development Law. He is originally from Winnipeg, Manitoba, and a proud member of the Manitoba Métis community. He holds a Honours BA from the University of Winnipeg where he studied Criminal Justice, Sociology, and Development Studies.

This year marked the 23rd annual Conference of the Parties (COP) to the United Nations Framework Convention on Climate Change (UNFCCC). Taking place in Bonn, Germany in early November 2017, this forum sought to bring parties together to strengthen ties in the fight against climate change. Individuals representing wide ranging sectors of society attended, from government, to private actors, and even public bodies and NGOs. The official President of this COP was Fiji, marking a dramatic acknowledgement of the danger posed to small island nations, many of which are on the forefront of the battle against climate change. This was also the 2nd year that the MJSDL participated in COP side-events. Last year’s conference saw countries reinforce their commitments to COP 21’s Paris Agreement, but was marred by the election of US President Donald Trump. This COP had new worries, as it was clear that the United States was out, but what would come next? This blog will explore the events that the MJSDL attended while in Bonn, and outline how commitments to the Paris Agreement evolved across the conference. We offer some takeaways from Climate Law and Governance Day, Development and Climate Days, and some perspectives on the future of the Paris Agreement.

The MJSDL sent four delegates to COP 23: Editor-in-Chief Allen Brett Campeau, Managing Editor Eric Weibe, Associate Editor Linda Muhugusa, and myself. The major event for our 4 delegates was Climate Law and Governance Day. The MJSDL is a co-sponsor of this event, which is organized yearly by the Centre for International Sustainable Development Law (CISDL). Since our first appearance at COP 22 in Marrakech, Morocco, we have co-hosted a climate litigation moot competition as a part of the day’s events. The mooters were all finalists in the Global Climate Law and Governance Legal Essay Competition 2017. This year’s moot focused on a battle between a hypothetical association of island nations and a hypothetical consortium of petrol-producing pacific nations at the International Court of Justice (ICJ). The key point of contention in this moot was on the legal personhood of the Pacific Ocean; in an effort to protect the Pacific Ocean, the island nations sought ICJ recognition of its legal personhood, as well as a moratorium on the construction of new oilrigs in the Pacific Ocean’s international waters. This event was again a great success and there was lively debate on both sides, but ultimately the petrol producers had the better argument and won the day.

Attribution UNFCCC High Level Talks COP23.UNFCCC.int

Climate Law and Governance Day began with a passionate speech by the Attorney General and Environment Minister of Fiji, Aiyaz Sayed-Khaiyum, on the impacts of climate change and the range of policies that Fiji has implemented to address the problem of potential climate refugees. Later plenaries and panels also focused on the impacts of climate change on small island nations. Each panel presented a number of different perspectives, ranging from local and indigenous knowledge systems, to practical implications of the Paris Agreement, to uncertainties, which still exist in the narrative of climate change policy in many nations. These panels presented innovative international, national, and local climate law and governance mechanisms, challenges, and best practices. Additionally, discussions focused on knowledge exchange between delegates, legal practitioners, and the legal academic community, allowing us to generate new law and governance knowledge and approaches.

The Bonn COP marked a significant departure from the subdued mood that has permeated climate negotiations since the United States announced its intention to withdraw from the Paris Agreement. Parties at a number of events seemed to have an optimistic outlook on the future of the Paris Agreement. As it stands, despite the absence of the American government at the negotiating tables, many key American actors continue to represent American interests. Representatives of cities, businesses, and other sectors continue to support the UNFCCC process and the Paris Agreement. While the American government may have reduced its involvement, this does not mean that the United States has entirely given up on climate reform.

Photo: UNFCCC/ Flickr.

The MJSDL members also attended the highly popular Development and Climate Days, hosted by the International Institute for Environment and Development at the Kameha Grand Bonn. The event spanned the course of 2 days, strategically placed between the first and second weeks of the COP conference. Several parallel sessions were held throughout the weekend. Each session addressed one of four themes: gender and the environment, resilience through empowerment, the value of lived experience and knowledge, and transparency and accountability. These themes permeated our discussions at the different workshops and panels. Talks stretched throughout the day on Saturday, culminating in a reflection panel on the first week of COP, the progress that had been made so far, and what was to come going forward.

Two members of our delegation also attended a climate law specialization course held by the CISDL on the final day of the MJSDL’s participation. This occurred at the United Nations University complex across from the Bula Zone, which saw the majority of the high-level COP 23 negotiations. This course brought together many influential actors from the areas of climate change law and international development. It focused on the legal challenges that stem from the implementation of the Paris Agreement. It included interactive workshops and panel discussions focusing on adaptation and resilience, renewable energy development, climate finance, along with transparency provisions under the Paris Agreement. There were also discussions about human rights law and climate change, loss and damage, and climate displacement. We thank the Student Society of McGill University (SSMU) and the McGill Law Students Association (LSA) for their support in allowing our members to attend COP 23 and this course.

COP 23 saw a recommitment by many parties to the Paris Agreement. As of November 2017, 195 members of the UNFCCC have signed the Paris Agreement, and 170 have become parties to it, including the historic ratification by Syria just prior to the conference, leaving the United States as the sole nation wishing to withdraw. Ultimately, an American withdrawal cannot occur until 2020 due to article 28, noting countries cannot withdraw until 3 years after the Paris Agreement goes into effect. In spite of this, one of the highlights of COP 23, and one of the major takeaways for many individuals, was the burgeoning move beyond the national commitments. COP 23 has shown that sub-national actors, including local and regional governments, may play significant roles in pursuing greenhouse gas reductions and climate change adaptation. Further, this COP has allowed for one to understand the ultimate impact of climate change on the individual. The Paris Agreement provides the framework for climate action, and now we must increase our ambition to achieve its goal of limiting global warming to no more than 2 degrees Celsius. When we look back at COP 23 we will see a pivotal moment in the history of UNFCCC conferences; it was here that the impact of climate action at the local level was underscored and the commitment to the future reaffirmed.

Ups and Downs of Melting Ice: Weighing Environmental and Economic Concerns Surrounding Marine Tourism in Nunavut

Lian Francis is a first-year student at the McGill Faculty of Law and an Associate Editor with the McGill Journal of Sustainable Development Law. She also holds a Bachelor of Science in Psychology from McGill.

The isolated hamlets and imposing landscapes of Canada’s remote north remain, for most Canadians, a distant region of their country that they will likely never visit. Yet, as a result of melting ice in these northernmost reaches of the continent, more and more Canadian and international tourists will have the opportunity to visit Canada’s Arctic Archipelago. The Northwest Passage, exceedingly treacherous to navigate until recent decades because of ice cover, now sees steadily increasing ship traffic. Rising cruise ship tourism poses a particular dilemma for northern Inuit communities, who are torn between the prospects of improving their often dire economic conditions and the preservation of their lands and waters.

Cruise boat in Nunavut
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Melting ice already adversely affects Inuit communities in a number of ways. Thin and receding ice reduces the available hunting and fishing grounds, threatening food security. Melting permafrost and the resultant cracks in the land make travel to remaining grounds and ancestral sites dangerous. Marine tourism, however, presents a new challenge. In August of this year, the Crystal Serenity, a cruise ship carrying more than 1700 passengers and crew, sailed through the Canadian Arctic Archipelago and stopped in several Nunavut towns. The Serenity, which made the same voyage for the first time last year, is by far the largest cruise ever to have taken this route; most other ships that have traversed the Northwest Passage carried fewer than 200 passengers. This may be the mark of a new era of marine tourism in Canada’s North – in 2016, 11 different ships made a total of 25 voyages along the coast of Nunavut.

On one hand, the growing tourism industry offers important economic opportunities. When tourists disembark in these Inuit communities, locals host art fairs, put on cultural demonstrations, and lead guided tours of the town. For families who struggle financially at other times of the year, this is a much-needed source of income. On the other hand, communities worry about the environmental impacts of increased ship traffic. Many cruise ships emit dangerous levels of sulphur dioxide and contribute to both air and water pollution. Increased traffic will also mean a greater risk of oil spills, a particularly significant concern given that cleanups and emergency rescues are difficult to carry out in the remote north due to extreme weather and navigational challenges. Communities are especially worried about the damaging effects of water and sound pollution on sea life, their main food source. The premature breakup of ice for the passage of ships also disturbs natural habitats and hunting grounds.

Pond Inlet, a town at
which the Crystal Serenity stopped
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media/File:Pond_Inlet_June_2005.jpg

Public institutions in Nunavut have weighed in on this dilemma, attempting to assist communities in balancing both economic and environmental goals. The Nunavut Impact Review Board, whose creation was negotiated as part of the Nunavut Land Claims Agreement between the Canadian government and the Inuit peoples of Nunavut, screens proposed projects in the region and assesses their environmental and socioeconomic impacts to ensure that approved projects promote the well-being of Nunavut’s communities and protect its ecosystems. In its screening decision regarding the Crystal Serenity voyage, the NIRB judged that the environmental impact of the ship’s passage would be minimal provided the crew conform with a number of recommendations, including limiting the time passengers could observe marine animals and ensuring personnel were trained in spill cleanup procedures. The Nunavut Planning Commission, also created by the Land Claims Agreement, drafted in 2016 a land-use plan which aimed to find a compromise between protecting Nunavut’s lands and waters and allowing tourism, mining, and other forms of development. The plan proposes using buffer zones and other restrictions to protect important habitats.

The Government of Nunavut has also responded with proposals of how to manage the growing marine tourism industry and its complex effects on communities. The Ministry of Economic Development and Transport released last year its Marine Tourism Management Plan, one of the key goals of which is to support community engagement in marine tourism planning by providing informational resources and assisting with data collection on the economic benefits of marine tourism activities. Another key goal is the adoption of legislation and regulations for the industry to address both economic development and environmental concerns. The Plan outlines several strategies to communicate these regulations to cruise operators and other actors in the tourism industry, including the design of codes of conduct for passengers when they visit communities and observe wildlife. An amendment to the Nunavut Tourism Act, which came into effect in April of this year, allows the government to designate an area as a Restricted Tourism Area for cultural, ecological, historical, or safety reasons, and to limit tourism activities within designated areas. The amendment also authorizes the government to create regulatory schemes for a wide range of tourism-related activities.

No regulations specific to marine tourism have been passed as of yet, so whether communities and the government will succeed in balancing environmental protection with economic goals is still to be seen. Canada’s contested sovereignty over the waters of the Northwest Passage may pose an additional challenge in the establishment of effective marine traffic regulations. As well, it may be that the increase in cruise ship tourism is less problematic in terms of environmental impact than the growing private yacht and sailboat traffic, as cruise operators typically work with communities to make visits run smoothly and to respond to concerns about wildlife. It is to be hoped that future regulations will promote similar cooperation between communities and private boaters so that the towns of Nunavut will be able to truly benefit from marine tourism.

 

FURTHER READING:

Building Sustainability into a Changing Arctic

Arctic Community of Practice and Offshore Oil and Gas Activities: Determining the Legal and Political Dimensions of the Obligation to Prevent, Reduce, and Control Pollution

Not Just a Pipe Dream: Indigenous, Provincial, and Environmental Considerations in Successful Canadian Pipeline Projects

Nicole Spadotto is a first-year student at the McGill University Faculty of Law and an Associate Editor with the McGill Journal of Sustainable Development Law. She holds a Bachelor of Arts from McGill University in Joint Honours Political Science and English. Nicole has previously worked as a political staffer on Parliament Hill and in marketing with PricewaterhouseCoopers LLP. She has experience in projects intersecting with policy, energy sustainability, and corporate social responsibility.

This past summer, I had the privilege of visiting Hardisty, Alberta on August 11 to tour the Enbridge Line 3 pipeline replacement project. Hardisty is a small town close to the Saskatchewan border, and is perhaps most famous for being a central hub for the oil and petroleum industry. While touring the pipeline replacement project, I had the opportunity to listen to speeches from Amarjeet Sohi, the federal Minister of Infrastructure and Communities, as well as from Alberta Premier Rachel Notley, and Albertan Indigenous representatives. Through touring the pipeline and learning from politicians from all levels of government in Canada, I gained understanding of some legal and policy factors that contribute to whether proposed pipeline projects fail or succeed in Canada. These factors include the duty to consult, provincial approval, and (increasingly) whether the pipeline is environmentally responsible.

When infrastructure developments have an impact on an Indigenous community’s land or rights, the Crown has a “duty to consult” with Indigenous groups before embarking on the project. The Indigenous community must be informed of the nature of the project, and given opportunities to answer the proposal.  For the consultation to pass constructional validity, the consultation must be “real and substantial” according to the Supreme Court of Canada – though the Indigenous community does not need to approve of the project for it to eventually move forward.

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The exact provisions of the “duty to consult” still need to be developed through legislation and courts. Doing so will sharpen whether the duty to consult means only conversation with Indigenous peoples or whether it extends to taking Indigenous views into account, and meaningfully adopting them, while developing projects. What did become clearer over this summer is that improper duty to consult can cause a whole project to be cancelled. In Clyde River (Hamlet) v. Petrolium Geo-Services Inc. the Supreme Court found that the National Energy Board did not properly consult Inuit in developing oil and gas projects in the North. In this failure, the National Energy Board also neglected to assess the impacts the gas and oil exploration project would have on Inuit rights and existing treaties. Hence, treaty impacts must be assessed and environmental effects need to be considered from Indigenous perspectives.

Helping Indigenous communities participate in the consultation process should be a priority for governments and oil and energy conglomerates. Based on the importance of oral traditions to many Indigenous communities, spoken testimony from Indigenous leaders should be taken into consideration as a valid form of consultation participation. Funding is also often necessary to help Indigenous communities participate in the consultation process, especially given travel costs from remote communities.

The Supreme Court has addressed the scope of the duty to consult, as well as the negative effects pipeline projects can have on Indigenous rights and titles. With diversity in Indigenous communities, and a vast difference in opinion, consultations might need to extend across individuals, groups, and national Indigenous organizations like the Assembly of First Nations. Within Indigenous communities, there are different interpretations of territory, and its ancestral and spiritual relevance. Though some Indigenous voices may be heard in the process, some will necessarily be marginalized. Many individuals in Indigenous communities refuse to recognize the Canadian government’s authority over their lands and are directly opposed to the duty to consult framework, which they see as a colonial framework. While some Indigenous communities and groups may be willing to work with the government, others will refuse this outright and their voices will consequently remain unheard.


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Additionally, provincial support and approval of pipelines helps these projects move ahead. Getting provincial approval for pipeline projects is vital politically; though Ottawa technically does have jurisdiction over these projects, it can be risky for the federal government to overtly assert their decisions over pipeline projects. Doing so without provincial consent can upset the idea that each level of government has different competencies in their own spheres. However, pipelines are vast projects that necessarily trigger both federal and provincial competencies. Overlap therefore necessarily exists between the federal and provincial jurisdiction over pipelines. While in the future, cooperative federalism could possibly help with working through the provincial-federal issues stemming from pipeline projects, the current interpretation of federalism is still very much rooted in the lists of competencies set out in ss. 91 and 92 of the Constitution Act, 1867. A trans-provincial pipeline project could thus very well have to be abandoned if one province consistently opposes it.

The importance of provincial approval of such projects manifested this autumn, with the TransCanada decision to cancel the Energy East pipeline project. The project had huge opposition, especially in Quebec, by politicians and the public alike. Had the project been approved, the pipeline would have transported crude oil beginning in Hardisty, Alberta and ending in New Brunswick. In the process, the pipeline would have passed through the province Quebec (including through Montreal) and along the St. Lawrence River to get to the East Coast.

The failures of recent pipeline projects demonstrate that provincial acceptance of such projects increasingly determines whether the projects will actually occur. However, provincial dissent over pipelines also seem to be deepening divides and resentments between certain provinces. After the TransCanada pipeline project was cancelled the Mayor of Montreal at the time, Denis Coderre, praised the cancellation along with several Quebec Members of the National Assembly. Quebec’s opposition, at least partially, very likely contributed to the cancellation of the project. As a result, Saskatchewan’s premier, Brad Wall, sharply criticized Coderre, the Quebec National Assembly, and the federal government. Bernard Drainville, a member of the Parti Québécois provincially at the time, sniped back over Twitter that Saskatchewan was engaging in blackmail. “It’s either the pipeline, otherwise, no more equalization,” Drainville tweeted. The federal government thus needs to navigate the dangerous political landscape of provincial sovereignty while also smoothing dissent between provinces to help the likelihood of success of pipeline projects in the future.

Finally, environmental responsibility increasingly helps validate pipeline projects to the public. Even beyond validation, environmental arguments have recently helped pipeline projects move forward politically. For example, though the Kinder-Morgan pipeline will not necessarily get built, the Liberal British Columbia government did agree to further pipeline negotiations only after Kinder-Morgan agreed to invest funding for over 20-years into environmental projects in the province should the pipeline be built. Similarly, much of Quebec’s opposition to the TransCanada pipeline was rooted in environmental costs, without enough economic benefit to offset concerns over sustainability.

To mitigate environmental concerns, many pipeline companies have committed to investing in sustainable development technologies. According to the Alberta Energy Regulator, the body which manages Alberta provincial pipelines, the number of pipeline accidents declined 44% over the past 10 years with this commitment to safe and sustainable transport of energy. The University of Calgary has a special research branch part of their school of engineering, the Pipeline Engineering Centre, which focuses on the advancement of pipeline engineering. The Centre places special emphasis on “integrity, maintenance, and management” of infrastructure. This summer, researchers at the University of Calgary actually developed technology that would prevent pipeline leaks and better protect the environment. Though the technology is expensive, implementing it on existing pipelines around rivers and lakes could have beneficial environmental impacts that outweigh the monetary costs of installation.

These initiatives are in place to meet the demands of provincial and Indigenous governments, environmental groups, and the public to have environmentally responsible pipelines. Recent cancellations of pipeline projects have happened at least partially due to widespread public and civil society concern about how projects will affect the environment. As such, the federal government and oil and energy companies would do well to ensure that proposed projects are as environmentally sustainable as current technology allows.

 

Further Reading:

Rachel Ariss, Clara MacCallum Fraser and Diba Nazneen Somani, “Crown Policies on the Duty to Consult and Accommodate: Towards Reconciliation?” (2017) 13:1 McGill J of Sus Dev L 5, online: <https://www.mcgill.ca/mjsdl/files/mjsdl/2_volume_13_ariss.pdf>.

 

 

 

Towards Reconciliation: A Comparative Snapshot of Australia and Canada’s Take on Indigenous Rights

Michelle Larg is a first-year law student at McGill University, and holds a Bachelor of Philosophy (Hons) degree from the University of Western Australia.  Her previous majors under this research degree include Chemical Engineering, Chemistry, and French.  She is currently an Associate Editor for the McGill Journal of Sustainable Development Law.

While antipodal and culturally distinct, both Canada and Australia share residual monarchal ties, a past saturated with the consequences of colonialism, and the challenge of navigating reconciliation with their respective Indigenous populations.  Indeed, the historical practices of systematic oppression of these groups are strikingly similar between the countries.  During the nineteenth and twentieth centuries, both countries enacted several legislative measures aimed at cultural assimilation. This manifested notably in Canada’s Indian residential school system, and in Australia’s analogous Stolen Generations.  The legacy of trauma stemming not only from colonisation, but also from such policy endeavours, has engendered a significant socio-economic disparity between non-Indigenous and Indigenous people common to both nations today.  The statistics paint a startling picture of symmetry:  Indigenous peoples make up 25% of the prison population in Canada, and 27% in Australia, and half of the children in the child welfare systems in both countries.  As an Australian student who has recently relocated to Canada, however, it is the marked differences between the reconciliatory conditions of the nations that has caught my attention.

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While both federal parliaments formally apologised for the Indian residential school system and Stolen Generations respectively in 2008, Australia’s move towards enacting both symbolic and practical reconciliatory change has been slow.  Canada’s apology was issued only twelve years after the close of the last residential school, but it was almost four decades following the abolishment of the child removal policy in Australia before any such action was taken.  Moreover, Australia still has not granted their Indigenous minority constitutional recognition, while section 35 of the Canadian Constitution formally recognises and affirms aboriginal and treaty rights.  Although section 35 does not elaborate on the definitions of these rights – instead, leaving their definition to the courts –  it still remains a vast improvement over Australian proposals for potential amendment, which avoid any language pertaining to Indigenous rights at all.  Indeed, this has been a topic of heated debate in Australia in recent months, with the government formally rejecting a proposal for constitutional amendment only last week. Finally, 2017 saw tensions between non-Indigenous and Indigenous people escalate with the proposition that the date of Australia Day be changed to reflect the Indigenous perception of it marking a celebration of invasion.  This notion was fiercely rejected by the federal government, who stripped city councils which supported the idea of their right to host citizenship ceremonies.

In light of these issues, the fact that Australia was elected only a few weeks ago for a three-year term on the United Nations Human Rights Council has left many perplexed.  In fact, the UN Human Rights Committee itself criticized Australia’s “chronic non-compliance” with its recommendations.  The nation has also been condemned for often developing policies regarding Indigenous people without their consultation.  This begs the question: given their historical and political parallels, can Australia look to Canada’s recent initiatives and progress in the realm of Indigenous rights for guidance?

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From the perspective of a newcomer, it seems that Canada has made significant progress in the recognition and validation of Indigenous rights over recent years.  The introduction of Gladue reports is an example.  These pre-sentencing and bail hearing initiatives incorporate a holistic analysis into how colonial oppression has affected the upbringing, life, and conduct of Indigenous accused.  Such factors are to be considered during the sentencing phase of trials.  The reports aim to address the failure of the criminal justice system with regards to Indigenous peoples and their disproportionately high incarceration rates.  Australia’s High Court noted in 2013 that Australia could do well to follow Canada’s lead in this area.

Similarly, the emergence of Canada’s first Indigenous court created by and for Indigenous people last year is a noteworthy pillar of progress.  The Akwesasne court of the Mohawk people places a far greater emphasis on community-based restorative justice divorced from imprisonment than that of their Western counterparts.  It is self-governed, exists independently from the federal framework, and has transcribed a code of law of its own.  While community-run Indigenous courts have existed for a number of decades in Australia, they are still largely state-managed and operated and invoke Australian criminal laws, just in a more “culturally appropriate forum.”

It is clear that both countries still have their fair share of work to do.  Given Australia’s newfound position on the global stage as a promoter and protector of human rights, it has significant ground to cover in its own country with its own Indigenous peoples.  Despite its recent achievements, however, Canada’s endorsement of the United Nations Declaration on the Rights of Indigenous People in 2016 was belated.  Many also argue that the Gladue reports make little practical difference or constitute an inaccessible and painful process.  Perhaps both countries could benefit from the more contemporary vision of Indigenous legal scholars. John Borrows, a Law Professor at the University of Victoria of Anishinabe origin, has suggested an integrated approach to viewing Western and Indigenous paradigms of thought, for instance. The ‘inter-societal law’ he advocates for involves the prospect of reciprocal dialogue between Indigenous and Western law, which could jointly guide legal decisions.  The reconceptualization of these two groups as inherently intertwined and of equal validity, rather than disparate and in competition, would likely mitigate many of the intercultural issues confronting both nations.  Indeed, with regards to my home country, such a perception would be a good start for resolving the constitutional recognition crisis which has re-emerged as a point of contention.

The Oil Sands at 50: Assessing Ecological Costs and Economic Benefits

Abraham Rash is a first year law student with the McGill University Faculty of Law and an associate editor with the McGill Journal of Sustainable Development Law. He holds a Bachelor of Arts in History from North Carolina State University and a Master’s in Public Administration from the University of Vermont. He has previously worked for the United States Peace Corps and the United States General Services Administration.

Fifty years ago this month, the Great Canadian Oil Sands plant began commercial operations in Fort McMurray, Alberta. As the world’s first large-scale oil sands surface mining and refining plant, it proved to be a mixed blessing. On the one hand, it brought jobs and wealth to the region for five decades; on the other, it caused irreparable environmental harm to the Athabasca River basin and sweeping cultural changes for the First Nations who inhabit the area.

From a legal perspective it has also proven to be a Gordian knot of increasing complexity. When the plant was first established, little thought was given to either the role or the concerns of the First Nations beneath whose lands the oil sands were found. However, in the fifty years since – and particularly in the thirty-five years since the passage of the Constitution Act, 1982 – there have been great strides in the value placed on Indigenous rights, and to the point that Alberta is now consulting and accommodating First Nations as it is required to do under s. 35 of the Constitution Act, 1982.

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In purely economic terms, there can be little question that the oil sands have been of enormous benefit to the region, to Alberta, and to Canada as a whole. To date, the oil sands project has resulted in an estimated C$217 billion in capital expenditures; it provides direct employment for an estimated 151,000 people across Canada, with that number projected to exceed 225,000 by 2038; the Oil Sands Sector Fund provides some of the most consistent returns in Canada; and these benefits are only expected to grow in the future. Broadly speaking, the oil sands project has brought skilled labor to the region, provided jobs and stability for thousands, and has been a spark of economic life in an otherwise sparsely populated northern forest.

Of course, it isn’t a perfect picture. To begin with, there is the obvious fact that every drop of oil burned contributes to the growing specter of greenhouse gas emissions and climate change. But even then, the oil pulled from the oil sands is ‘dirty’ oil, i.e., thick, crude, and especially difficult – and expensive – to extract and to refine. Every step of the process creates far more pollution than most other forms of fossil fuel extraction, from the open pit mines where it is dug, to the tailing ponds where the bitumen is separated out, it takes two tons of sand to yield one ton of oil. In addition to the direct negative impacts of the mining itself, there is also damage to the water table, pollution to lakes and streams, air pollution, and the irreversible and unsightly blots of the old strip mines themselves.

It’s also hard on the people who live in the oil sands regions, particularly the First Nations of Northern Alberta. In addition to the health risks occasioned by the refining itself, there are also a number of social ills associated with the industry. Housing prices in the region tend to boom and bust in lockstep with oil prices. In November 2007, the average price of a single family home in the region exceeded $600,000, a price increase of over 300% since 1990. However, by August 2016, the average residential home price had fallen to $390,615. The vacancy rate for apartments in Fort McMurray is virtually zero, as the price of modest two-bedroom accommodations averages over $2,000 per month.

Similarly, inflation (measured by the Consumer Price Index) has risen steadily, despite decreased wages, and drops in oil prices drive booms in crime, particularly among First Nations. The sum of these and other effect has been dissolution:  as the Chipewyan Dene Nation that has inhabited the Athabasca river region for centuries has seen the destruction of the forest and river habitats that support their traditional hunting and fishing lifestyle, they have experienced a corresponding unraveling of the social fabric of their communities.

Fortunately, both the environmental and social problems are receiving increasing attention both in government and within the industry itself. Despite the profound damage done by the Harper government’s so-called ‘war on data’, oil sands monitoring has greatly expanded in scope and grown increasingly over the past decade. A joint Canada-Alberta Implementation Plan for monitoring was drafted in 2012, and a symposium was held in 2015 to focus on lessons learned. It is true that progress hasn’t been uninterrupted, as a report from 2016 on failures to adequately support Indigenous communities in the region highlights, but by all markers the state of the region is improving from a time when oil companies acted with impunity.

Of course, the big question is, what next?

It’s difficult to predict the future of the oil sands project with any certainty, but one recent development with enormous implications for both the industry and the region is a lawsuit brought by the Beaver Lake Cree Nation in 2012, arguing that the cumulative effects of oil sands and other environmentally destructive industries have violated their treaty rights. The nation won a landmark decision in 2013 in the Alberta Court of Appeal in Lameman v. Alberta, and they are continuing to push their case today. Whether they are successful or not, it seems certain that increased attention to the environmental and social impacts of oil sands extraction and the need for increased consultation and partnership with First Nations are both here to stay.

 

Interested in learning more? We suggest these articles from our past issues.

Crown Policies on the Duty to Consult and Accommodate: Towards Reconciliation?

The Trials and Tribulations of Ontario’s Mining Act: The Duty to Consult and Anishinaabek Law

Climate Change in Canada: Intersections of Law and Politics

Settler Colonialism and Extractive Dependency: Reflections on a visit to the Algonquins of Barriere Lake territory

By: Sydney Lang

On Wednesday, March 23, I visited Mitchikanibikok Inik, or the Algonquins of Barriere Lake (ABL) territory, as a part of a human rights delegation working on mining justice issues. Although I only visited the 59-acre reserve that the federal government forced the community onto, the community maintains over 10,000 square kilometers of territory. While on the reserve, I heard stories and saw firsthand the implications of extraction and energy within a settler colonial context, and the ways that this controls Indigenous peoples and their territory.

This firsthand experience stressed the past and present dimensions of settler colonialism. Historically, colonial governments and Indigenous peoples signed treaties for the sake of development. Land was needed to support the settler population and natural resources were desired as a source of wealth. Of course, the historical links between extraction and colonialism are not uniquely Canadian; they have roots in Europe’s colonization of Africa and the Americas. Colonial violence against African peoples took the form of forced mining labour, displacement, and slavery. Here, humans themselves were extracted, from Africa to the Americas, in the name of colonialism and resource extraction. As Eduardo Galeano writes in Open Veins of Latin America, this both dislocated agricultural communities, destroyed the collective farming system, and took many lives.

A house on the ABL Reserve. Attribution: Sydney Lang.

Throughout recent history, Indigenous peoples have been forced onto small reserves, often far from territory in which they have spiritual ties, for the sake of development and extraction. When extraction is set to take place on Indigenous territory, the Canadian government, as established through Canadian case law, has a duty to consult and accommodate Indigenous peoples. However, this duty does not require consent from Indigenous peoples. This exists in tension with UNDRIP’s requirement for the government to receive free, prior, and informed consent from Indigenous peoples before moving forward with development on their territory. It is also important to note that extraction is not limited to natural resources. The settler colonial project extracts and exploits labour, culture, knowledge, and autonomy, although this does not fit within pre-established case law.

Extraction

For many years logging has occurred on the Mitchikanibikok Inik territory I visited. As we walked through the reserve, we noticed a small pile of logs; the government leaves a pile every year for heating. This wood was logged on ABL territory and is the extent of resource revenue sharing by the government.

The ABL sought to address issues of extraction and resource revenue sharing by negotiating a Trilateral Agreement with the Canadian and Quebec governments in 1991. Although many recommendations were adopted under this agreement, resource extraction continues. In 2006, the community put forward a list of seven demands to be negotiated with the government of Quebec. Although Quebec accepted six of them, including co-management of renewable resources, they suspended negotiations in 2006 over a refusal to share resource revenue with the community.

Recently, a junior mining company called Copper One began prospecting on the territory and found large deposits of copper. This mine could have disastrous effects on the community and surrounding wildlife, as the mining claim covers 300 square kilometers and includes part of the La Vérendrye wildlife reserve. Neither the Quebec government, nor the company, informed or consulted the Algonquins of Barriere Lake before granting Copper One a mineral claim on their territories. The community takes a strong “no mining” stance, and have put their bodies on the line to prove it with the creation of a land protection camp. Although the government claims that it will temporarily suspend Copper One’s claims to the territory, the future of this project remains uncertain.

ABL Band Concillor Norman Matchewan giving a tour of the reserve. Attribution: Allan Lissner

Energy

The community backs onto a hydroelectric dam reservoir, owned by Hydro Quebec. This has created dangerous conditions for the community. Norman Matchewan, Band Councillor, told us that when it was first installed, the community was not warned when the corporation would be releasing water from the dam. As a result, two elders drowned from falling through the thin ice. Although the dam powers neighbouring communities, Hydro Quebec has not connected the reserve to the grid. This is another one of the community’s recommendations to the government of Quebec: the electrification of Rapid Lake.

Instead, the government has supplied the community with diesel generators. As we walked by the generators, we could smell the diesel. Norman told us that it isn’t unusual for the smell to reach the entire community when it’s windy. He also said that the generators are prone to breaking down, sometimes remaining unfixed for days. The community both relies on these generators for electricity, yet is also limited by them, as they are used at capacity and restrict the community from building much needed infrastructure. The generators supplied by the government both contribute to the community’s precariousness and force them to use unsustainable forms of energy that are polluting their land.

The Algonquins of Barriere Lake have endured colonial extraction in many forms, yet remain strong with their demands. Although the Canadian government has not yet recognized Indigenous peoples’ right to say “no” to development projects on their territory, enforcing the Trilateral Agreement and other integrated resource management plans and recommendations would act as a strong first step towards addressing histories of settler colonial violence through extraction and land use.

 

Interested in learning more about settler colonialism and extraction in Canada? We suggest these selected articles from our past issues:

6:2 Access to Justice: The Impact of Injunction, Contempt of Court Proceedings, and Costs Awards on Environmental Protestors and First Nations

8:1 Exploring the Mining “Money Trail”: Assessing British Columbia’s mining Tax Regime and Unearthing Legal Tools that Foster Greater Returns for Local Communities

11:2 Tsilhqot’in Nation as a Gateway Towards Sustainability: Applying the Inherent Limit to Crown Land

These articles are referenced as suggested reading. It should not be taken to imply their authors share the views expressed above. 

 

“Current” issues: why we need to talk about water law in Canada

Julia Redmond is a first year law student at McGill and an associate managing editor with the McGill International Journal of Sustainable Development Law. She holds a Bachelor of Arts and Science in interdisciplinary studies from McMaster University, with a focus in environmental science and policy.

If you live in Canada, you have probably been fed the myth that we are a nation of abundant clean water. Three-quarters of our country’s population live within 161 km of the US border, especially along the Great Lakes and the Saint Lawrence, where availability of water does not feel like an issue. (Of course, many others still feel the effects of a disturbing lack of clean water, in particular on aboriginal reserves; there are still dozens of boil-water advisories in place in aboriginal communities across the country.) In reality, Canada does have more water than most countries in the world — but this does not necessarily translate to availability.

https://flic.kr/p/ag7FKS: Paddlers on the Hart River, part of the Yukon’s disputed Peel Watershed. (Juri Peepre for Protect the Peel)

This water accessibility myth has consequences, be it on people’s day-to-day living, spirituality, work, or leisure. Water is essential, and yet it is not discussed as a legal or governance issue nearly enough. Thinking we have got it covered when it comes to water means that there is less public pressure and motivation to improve water governance — yet it needs improvement.

Various groups have insisted on a new governance structure that can better protect water resources, including academics and research groups, the government itself, and non-governmental organizations. Ultimately, Canada’s water governance challenge is not only a result of the myth of abundance; it also flows from the structure of our Constitution. It seems that water resource management was perhaps not top of mind leading up to 1867 when powers were divided up, leaving fisheries, navigation, and international waters to the federal government, and water resources and supply to the provinces, who delegate to municipalities.

This arrangement leads to different approaches to governance and managing its gaps. Manitoba, for example, had (until recently) an entire Ministry of Conservation and Water Stewardship — the only one of its kind in the country. British Columbia has implemented its own attempt at unified water legislation. Ontario enacted some reforms in response to the Walkerton crisis, while also relying on the Environmental Bill of Rights and its associated Commissioner for environmental stewardship. Like so many areas of Canadian law, water is complicated by our unique brand of federalism.

The last real attempt to make any kind of unified strategy to resolve issues and improve water management was 30 years ago, which is hardly current. While the surprisingly progressive Federal Water Policy (1987) has been praised for its call for the equitable and efficient use of freshwater respecting the needs of future generations, it did not lead to the kind of action needed to fulfill its objectives. No notable efforts have been made since for a unifying water policy.

There is some hope that the tide is turning, however. Water law and resource management has been getting more attention because it overlaps significantly with climate change, which has generally become a higher priority on government agendas at all levels. Water-related crises — like the flooding in Alberta in 2013 — have made it hard to ignore water governance issues, if only temporarily.

https://flic.kr/p/qHQBT9: Nestlé’s purchase of a well in the Township of Centre Wellington sparked public outcry. (Daniel Orth)

There have also been recent examples of the public speaking up and questioning government action on water. One such incident arose in the Township of Centre Wellington, Ontario, where Nestle purchased the rights to the municipality’s groundwater to bottle and sell it. Nestle had not only bought the water company — they had outbid the Township itself, who aimed to protect water from commercial interests. Residents started advocacy efforts, echoing the Environmental Commissioner’s warnings. All this eventually led the Premier to include water as part of her government mandate.

Even more recently, water management has gotten attention in the judicial branch, at the Supreme Court of Canada. March 22 was a watershed moment in more ways than one, as aboriginal and environmental groups came together to fight for protection of the Yukon’s Peel Watershed, a massive, untouched water system. The case arose out of a dispute between First Nations groups and the Yukon government after the breakdown in negotiations for industrial development of the area. The decision will have significant  implications for the duty to consult as well as for water law.

With the hearings of First Nation of Nacho Nyak Dun, et al. v. Government of Yukon done, it is difficult to say yet what will happen. However, no matter which way the case goes, it highlights the importance of addressing water issues at a national level. We can only hope this opens the floor for a bigger conversation, because it is about time for Canada to talk more openly and take action on water issues.

Interested in learning more about water law and resource management? We suggest these articles from our past issues:

10:1 Environmental Monitoring and Ecosystem Management in the Oil Sands: Spaceship Earth or Escort Tugboat?

8:2 Book Review: Inga Winkler, The Human Right to Water: Significance, Legal Status and Implications for Water Allocation

4:2 Book Review: Karen Bakker, ed., Eau Canada: The Future of Canada’s Water

Consultation, Accommodation, and the Right to Say “No”: How Aboriginal Rights Help to Protect the Environment

Allen Brett Campeau is a law student at McGill University and an Associate Editor with the McGill Journal of Sustainable Development Law. He studied the impacts of climate change on Arctic terrestrial ecosystems during his BSc and MSc degrees in Geography and Biology. You can connect with him on Twitter here: @ABCampeau

Canada’s commitment to tackling climate change and pursuing reconciliation with Indigenous Peoples is often challenged by deep-seated economic interests in fossil fuel development. The Trudeau Government has aimed to strike a balance between the economy and the environment while touting a new “Nation-to-Nation” relationship with First Nations, Inuit, and Métis people. It has thrown its support behind both the Paris Agreement on climate change and the Declaration on the Rights of Indigenous Peoples (UNDRIP), which would grant Indigenous Peoples greater say over resource development on their traditional territories. However, the Government also advocates resource-driven economic development and support for the ailing oil industry in Alberta. We are told that new tar sands infrastructure, like the Kinder Morgan Trans Mountain pipeline expansion, can be built while still honouring our climate change commitments and the principles of UNDRIP. This is a delicate balancing act for the Government, but the power and influence of the oil industry has a way of tipping the scales. Can this imbalance be remedied by implementing UNDRIP and better protecting Aboriginal rights?

Rally against the Kinder Morgan Trans Mountain pipeline expansion on Burnaby Mountain (November 17, 2014). Attribution: Mark Klotz.

On May 10, 2016, Canada officially removed its objector status to UNDRIP, almost 10 years after it was first adopted by the UN General Assembly. It was a watershed moment, of sorts, for our country, which has long struggled with colonialism and its ongoing consequences. After making the announcement, Indigenous and Northern Affairs Minister Carolyn Bennett received a rare standing ovation at the UN. The move was also celebrated here in Canada, with Perry Bellegarde, the National Chief of the Assembly of First Nations, hailing it as a “historic day”. This was, after all, the first step towards actually implementing UNDRIP, which the Trudeau Liberals promised to do in their 2015 election platform.

Canadian governments have expressed reservations about UNDRIP because of perceived conflicts with existing Canadian legislation, like the Indian Act, and with the Canadian constitutional framework. Section 35 of the Constitution Act, 1982 recognizes and affirms Aboriginal rights, but it does not define them, leaving issues of uncertainty to be resolved in the courts. Of particular relevance to climate action and resource development is the so-called “duty to consult”, established in Canadian case law, which requires the Canadian government to consult and accommodate Indigenous Peoples on matters that affect their rights. However, there currently exists no constitutionally protected Aboriginal right to be consulted. Nor is there any requirement for the government to obtain the consent of an Aboriginal group before approving developments on their territory. This is perhaps the most important – and politically controversial – difference between Canadian law and UNDRIP, since its Article 19 may be interpreted as compelling States to “obtain [the] free, prior and informed consent [of Indigenous Peoples] before adopting and implementing legislative or administrative measures that may affect them.” The full implementation of UNDRIP would require recognition of this right in Canadian law, potentially giving Indigenous Peoples a “veto power” – a right to say “no” – over developments on their territory.

Idle No More protesters in Ottawa. Attribution: Moxy.

The Trudeau Liberals have not acknowledged anything approaching an Aboriginal veto power in their recent approvals of pipelines and other fossil fuel projects. In fact, the Government appears to be backpedaling on its promise to implement UNDRIP and has largely ignored Aboriginal concerns in the pipeline and climate change debates. Less than two months after declaring Canada’s unconditional support for UNDRIP, Minister Carolyn Bennett expressed scepticism of an Aboriginal veto power and stated that development projects “in the national interest are to be considered.” This position is in keeping with recent jurisprudence on Aboriginal rights and title in Canada, like Tsilhqot’in Nation v British Columbia (2014), which set out a test allowing the Crown to override Aboriginal title in certain circumstances. Put simply, the Government can approve a project that occupies or traverses Indigenous lands, despite opposition, if they check all the boxes on the “duty to consult” and show a “compelling and substantial public interest” in the project. The promise of jobs in the oil patch and the refrain that “we need to get our resources to tidewater” could allow the Government to justify its December 2016 approval of the Kinder Morgan Trans Mountain pipeline expansion. And if there was any doubt about the Government’s position on UNDRIP’s Article 19, Prime Minister Trudeau stated “No, they don’t have a veto” when asked about First Nations that continue to oppose the pipeline.

The Government’s approval of the Trans Mountain project was a welcome boost for the oil industry, but raises serious doubts about its commitment to climate action and reconciliation with Indigenous Peoples. Charlene Aleck, an elected Councillor with Tsleil-Waututh Nation at the heart of the pipeline debate, called the political maneuvering of the Trudeau Liberals a “fundamental betrayal.” Her First Nation is one of several pursuing legal action against the Government, arguing that they were not properly consulted about the project. The outcomes of these lawsuits are far from certain given the rapidly evolving nature of Aboriginal law in Canada, but recent jurisprudence suggests a growing willingness to recognize Aboriginal title and land rights. The Government’s formal recognition of UNDRIP presents an opportunity for the courts to strengthen protections for Aboriginal rights and entrench previously unrecognized rights, perhaps even the right to say “no” to developments on Indigenous lands. Indigenous communities stand to gain a stronger hand in development planning and an even more important leadership role in Canadian climate policy, with the likely upshot being a healthier planet for all of us.

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