KAIROS Policy Briefing Papers are written to help inform public debate on key domestic and foreign policy issues

No. 18 November 2009

Indigenous Peoples and Oil and Gas Development Respecting Rights, Minimizing Risks, Maximizing Benefits

By Ed Bianchi

il and gas exploration and development has Governments and industry must respect and protect been driven to the doorsteps and backyards traditional cultures and values, honour and enforce Oof Indigenous communities across Canada Indigenous land rights and recognize Indigenous by society’s seemingly insatiable demand for non- peoples’ right to self-determination, including the renewable fossil fuels. Historically, the societies right to free, prior and informed consent. In this and cultures of First Nations, Inuit and Métis peo- way, First Nations, Inuit and Métis peoples will be ples have been seriously damaged by unsustainable better able to control and manage the exploitation of resource exploitation practices over which they usu- oil and gas on their lands so that they are a benefit ally had little or no control. Today, Indigenous peo- to their land-based cultures and their future genera- ples are adamant that history not repeat itself. This tions. time they are demanding that resource extraction This paper examines how these principles influence projects be carried out in a sustainable way that re- Indigenous peoples’ responses to resource extrac- spects their rights as peoples and nations with dis- tion projects. And how these principles guide the tinct cultures and identities. decisions of various Indigenous communities across Indigenous peoples today are among the poorest Canada, including the northern communi- and most marginalized in Canada and, while there is ties of Fort McKay and Fort , which are, some acknowledgement that extractive activities respectively, in the middle of and downstream from may alleviate the serious and chronic one of the world’s largest industrial projects. socioeconomic challenges that plague so many communities, there is also an unwillingness to sacri- fice the long term health and viability of territories Guiding Principles and lifestyles for relatively short term economic Then Assembly of First Nations National Chief Phil gain. For many Indigenous peoples the threat of Fontaine, speaking to the Prospectors and Develop- permanent harm to their unique cultures and identi- ers Association of Canada in 2008, identified three ties from damage to their lands is simply too high a “basic and fundamental” principles for guiding joint price to pay. ventures between First Nations and corporations, Before projects on traditional lands even reach the which he described as “a special kind of collabora- drawing board certain conditions must prevail. tion that must take our identity and status into ac- “We have had enough assimilation and exploitation. count.”1 Attempts to destroy our cultures, our identities never worked in the past and they will never work The first principle is respect for and protection of in the future,” National Chief Fontaine told his au- cultures and values. According to Chief Fontaine, dience of prospectors and developers. He chal- “Development which substitutes economic impov- lenged them to break with the past of “dependency erishment for cultural impoverishment is a non- and despair” by empowering First Nations to revi- starter. It will never work because we love our cul- talize their languages and cultures, to participate tures. They represent who we are and where we and prosper in the Canadian economy and to be have come from. It is as simple as that.” “proud once again of what it means to be an In- The second principle is the respect of Indigenous dian.” rights to lands and resources; Fontaine said: “Our “It will not be an easy task,” Fontaine said. “But it inherent, Aboriginal and Treaty rights are recog- is not impossible either. Part of the secret to success nized and affirmed in Canada’s Constitution and will be collaboration and co-operation with like- they have been repeatedly affirmed by the Supreme minded partners, in industry, government and civil Court of this land. As such, the law requires that society, to ensure that development opportunities on they be respected by all governments and all com- our traditional lands will result in healthier, more panies that do business in Canada.” sustainable First Nations communities.” The third principle is for meaningful consultation— from the very beginning of a development project. “We think it is presumptuous for companies to start Indigenous Cultures and Values work on development projects which may affect our very way of life, yet come to consult with us only The devastation of Indigenous lands means a loss of after the project is underway,” Fontaine said. culture for First Nations in Canada whose spiritual- ity is grounded on the sanctity of Mother Earth. According to Fontaine, ignoring these principles is tantamount to perpetuating the federal govern- – Carmelle Wolfson4 ment’s discriminatory policy that was condemned in the 1996 Report of the Royal Commission on On March 23–25, Aboriginal Peoples 2009, Indigenous peo- (RCAP).2 RCAP con- ples representing doz- cluded that at the root ens of Indigenous na- of problems facing In- tions from 35 countries digenous peoples in gathered in Manila, Canada is the ongoing Philippines, to discuss violation of their the impact of extractive rights, in particular industries on their their fundamental right lands and cultures. to self-determination, As the conference’s which flows from their declaration explains, existence as historical unbridled resource ex- nations. Indigenous ploitation activity has nationhood and sover- led to the erosion of eignty was recognized Young dancers perform at a public gathering in Fort Chipewyan during the KAIROS delegation visit. Photo: Anne Lewans traditional cultures in the hundreds of trea- “because of the de- ties between Indige- struction of biological diversity and lands, territo- nous peoples and European states, and each of these ries and resources by extractive industries upon recognized the original peoples’ traditional territo- which our cultures are based.” 5 ries.3 2 Article 8 of the UN Declaration on the Rights of The relationship with the land and all living things Indigenous Peoples states “Indigenous peoples and is at the core of Indigenous societies. “As indige- individuals have the right not to be subjected to nous peoples have explained it is difficult to sepa- forced assimilation or destruction of their culture.”6 rate the concept of indigenous peoples’ relationship with their lands, territories and resources from that The Exploring Community-based Responses to Re- of their cultural differences and values.” source Extractive Developments in Northern Can- ada Roundtable was organized by the National Abo- Professor Robert A. Williams, in a discussion about riginal Health Organization (NAHO) in March the territorial rights of Indigenous peoples in the 2008. It brought together First Nations, Inuit and Working Group on Indigenous Populations, stated Métis community members to discuss the “broad “indigenous peoples have emphasized that the spiri- health and well being impacts of resource extractive tual and material foundations of their cultural iden- development projects (i.e. oil and gas, mining) on tities are sustained by their unique relationships to Aboriginal peoples, their territories and their com- their traditional territories.”9 munities.” Its goals included highlighting The final report of the Royal Commission on Abo- opportunities and challenges presented by resource riginal Peoples concluded that the dispossession of extractive development and determining how to their traditional lands and resources is at the root of enhance the opportunities and minimize the chal- all challenges facing Indigenous peoples in Canada lenges.7 The Roundtable discussions focused on four today. “Stripping Aboriginal people of their land themes: cultural impacts, including traditional base has meant depriving them of their means to knowledge and access to land and resources; politi- make a living, their cultural identity, and their spiri- cal impacts, including resource governance and de- tual place of worship.”10 cision making; economic impacts; and social im- RCAP asked Canadians to imagine “a farmer with- pacts. out any farmland. A fishing village with no boats. A Deliberations on cultural impacts identified con- teacher without a schoolhouse. Or a religious con- nectedness to the land as being common to all In- gregation with no church. Now imagine your own digenous cultures. Participants agreed that the fact community had no work, no social system, and no “land is life” for Indigenous peoples must be re- place to worship. There would be no community.” It membered in the context of any industrial activity was the same, RCAP said, as “an Aboriginal com- on Indigenous lands. munity with no land.” 11 The link between land and culture for Indigenous The importance of land to Indigenous peoples was peoples was argued by international human rights demonstrated by the small Xeni Gwet’in First Na- expert Erica-Irene A. Daes in her final report to the tion in in January 2009 when it UN Commission on Human Rights.8 Daes noted launched a court case to stop a proposed multibil- that Indigenous peoples have emphasized the “ur- lion-dollar gold and copper mine on their traditional gent need for understanding by non-indigenous so- territory near Williams Lake. The project would cieties of the spiritual, social, cultural, economic drain a lake that is an important and traditional and political significance to indigenous societies of source of food for the community and create an- their lands, territories and resources for their con- other lake six kilometres away.12 tinued survival and vitality. The mining project enjoys wide support from peo- “In order to understand the profound relationship that ple in Williams Lake, a community still reeling indigenous peoples have with their lands, territories from job losses to the forestry industry caused by and resources, there is a need for recognition of the the pine beetle infestation. One estimate said the cultural differences that exist between them and open-pit mine would generate $5 billion in eco- non-indigenous people, particularly in the countries nomic activity over 20 years and contribute more to in which they live. Indigenous peoples have urged the province’s coffers than the film and television the world community to attach positive value to this industry. distinct relationship.”

3 The Xeni Gwet’in say the project will infringe on our right of self-determination, our right to own and their Indigenous rights and are determined to stop control our lands, territories and resources, our right the environmental assessment process. In court to free, prior and informed consent, among others.” documents, the community explained: “The con- Article 26 (2) states: “Indigenous peoples have the struction, operating and maintenance of an open-pit right to own, use, develop and control the lands, ter- mining project of this magnitude, including the de- ritories and resources that they possess by reason of struction of a fish-bearing lake, will significantly traditional ownership or other traditional occupation impact the ecological, cultural and spiritual integrity or use, as well as those which they have otherwise of the surrounding lands and waters.” acquired.” According to Chief Baptiste, the Xeni Gwet’in are not As Erica-Irene Daes emphasizes in her paper to the interested in the financial benefits of the proposed UN Sub-commission on the Promotion and Protec- mine. They want to preserve their fishery and water tion of Human Rights, “One of the most widespread for future generations. “In 1864 we had our war lead- contemporary problems is the failure of States to ers protect our territory on the west side—they were recognize the existence of Indigenous land use, oc- after gold then. Now we are looking to protect our cupancy and ownership, and the failure to accord territory on the east side. Back then our leaders knew appropriate legal status and legal rights to protect we cannot eat gold. If they go after the gold now, that 14 that use, occupancy or ownership.” would destroy our fish and our water.” In November 2008, the Lubicon Lake wrote RCAP identified TransCanada Pipe- “expanding the lines to call for the land base of Can- joint development of ada’s Aboriginal a written agreement communities” as “that describes how the “single most both the Lubicon important step to- Lake Indian Nation ward providing the and TransCanada will means to work to- work together during wards sufficiency the construction and and self-reliance operation of the pipe- [and] honoring the line” across Lubicon basic terms of past 15 territory. treaties which promised co- The Lubicon stressed existence between While the Alberta tarsands, one of the world’s largest industrial pro- that before work on two equal jects, do provide economic benefits for Indigenous peoples, there are such an agreement neighbours.”13 also concerns about the negative impacts on the health and water of the could begin, Trans- land. Photo: Sara Stratton Canada would have to assure the Lubicon Indigenous Land and Resource Rights that its concerns would be accommodated; Trans- Canada would The impact of resource extraction on Indigenous peoples’ lands and lives is a human rights issue. o answer Lubicon health and safety questions Victoria Tauli-Corpuz, chair of the UN Permanent about activities proposed in Lubicon Terri- Forum on Indigenous Issues, echoed this under- tory; standing in her statement to the UN General As- o accommodate Lubicon social, cultural, envi- sembly following the UN’s adoption of the Declara- ronmental and wildlife concerns arising tion on the Rights of Indigenous Peoples. from activities proposed in unceded Lubicon The Declaration “embodies the most important Territory; rights we and our ancestors have long fought for; 4 o provide the Lubicon people—through successive governments to honour existing agree- agreement with the duly elected Lubicon ments or to negotiate new agreements in good faith. government—with economic opportunities Rather than work with the original peoples of Can- resulting from proposed activities in ada to build a fair and just society, the governments unceded Lubicon Territory. of Canada and the provinces have pursued discrimi- natory and assimilative policies. In conjunction with In a letter to TransCanada, the National Aboriginal bureaucratic mismanagement or indifference, Health Organization (NAHO) said the findings of punitive regulation and outright fraud, these policies its roundtable in March 2008 “clearly support the have led to an almost 70% reduction since Confed- Lubicon demand that TransCanada Pipelines must eration in the actual reserve or community land base accommodate Lubicon social, cultural, environ- and the near disappearance of on-reserve resources. mental and wildlife concerns arising from activities th 16 Below the 60 in Lubicon territory.” parallel, for instance, Indigenous people control less than one half of one percent of NAHO’s letter emphasized the “boom and bust” Canada’s land mass and much of that is land of character of the resource extraction industry with marginal quality.18 potential negative impacts that could last forever. “While the employment benefits of pipeline con- This relentless process of separating Indigenous struction are short term, the resource extraction in- peoples from their lands has occurred despite nu- dustry can undermine traditional land use patterns merous court decisions confirming the existence of Indigenous rights, both prior to European settle- and alter the health, quality and availability of re- 19 sources of First Nations communities for genera- ment and today. Canada’s highest courts repeat- tions if these are not addressed in good faith by all edly rule that these rights cannot be extinguished parties involved in all phases of development.” without the consent of Indigenous peoples, as indis- putably stated in Canada’s Constitution Act, 1982. In a recent open statement on the occasion of the th Province of British Columbia’s 150 anniversary, Grand Chief Edward John stressed that it is time to Meaningful Consultation end the 150 year practice in BC of ignoring Indige- The declaration from the Indigenous conference in nous peoples’ land rights.17 Manila in March 2009 asserts that Indigenous peo- “The position of the courts is clear: The provincial ples “have suffered disproportionately from the im- government and predecessor colonial governments pact of extractive industries” because Indigenous did not and do not have legal authority to extinguish lands are “home to over sixty percent of the world’s first nations’ aboriginal rights and title. most coveted resources.” It goes on to explain how the exploitation of Indigenous lands, territories and “We first nations refuse to accept the Crown’s colo- resources “without our consent” has led to “the nial-based extinguishment policies. We are adamant worst forms of, environmental degradation, human that our inherent rights be recognized through rights violations and land dispossession and is con- legislation and be affirmed in treaties and tributing to climate change.” agreements. With this basic rights recognition, we expect to share the benefits from land and re- According to the declaration, human rights viola- tions include “violations of Indigenous Peoples’ Grandsources.” Chief John is not alone in his call for the rec- rights to self-determination (which include the right ognition and enforcement of Indigenous peoples’ to determine one’s own economic, social and cul- rights. Across Canada, there are many examples of tural development), rights to lands, territories and Indigenous communities refusing to accept unbri- resources.” dled resource extraction if it means undermining their inherent and treaty rights. The conference declaration refers to the May 1996 Mining and Indigenous Peoples Conference in Lon- According to RCAP, the profound socioeconomic don, England, and its Indigenous Peoples’ Declara- challenges facing Indigenous peoples in Canada to- tion on Mining that emphasized “Indigenous Peo- day are in large part a consequence of the failure of ples need to be the decision makers on whether or 5 not mining should take place in their communities informed, and based on full disclosure of activities and under what conditions they may occur.”20 to be undertaken in ways that are understandable to the community; and (4) that consent means the abil- The courts have made it clear that it is the legal duty ity to say “no” at any time prior to, or during nego- of the Crown to consult with Indigenous communi- tiations.22 ties when it comes to decisions that may impact In- digenous title and rights. Consultation is the In December 2008 the Council of the Haida Nation Crown’s legal obligation and cannot be delegated to said it was not consulted about Enbridge Inc.’s a third party, such as industry. The Supreme Court Gateway pipeline from to Kitimat, has also said “The duty to consult and accommodate BC, and added that, anyway, it would never accept is part of a process of fair dealing and reconciliation the plan. that begins with the assertion of sovereignty and “The Haida Nation will certainly not accept tanker continues beyond formal claims resolution.”21 In traffic where we would bear the burden of risk and other words, Indigenous peoples do not have to oil spills in our waters. Our livelihoods would be prove they have jeopardized,” rights and title council to activate Can- spokesperson ada’s legal duty Howard Davis to seek consul- said. “Many tation. of our In 2007, the neighbour na- UN Declaration tions are on the Rights of equally con- Indigenous cerned about Peoples, which impacts on as of September their lands 2009 was not and water. We endorsed by the are willing to Government of stand united Canada, recog- to protect our nized Indige- waters.”23 nous peoples’ Indigenous people living near the Alberta tarsands have called for independent studies “Regulators rights to con- on the cumulative impacts of the development. Photo: Sara Stratton are not re- sultation and specting the free, prior and informed consent. fact that we have a responsibility to protect our an- According to the UN Declaration, “States shall con- cestral territories, rights, title and interests,” said sult and cooperate in good faith with indigenous David de Wit, natural resources manager for the peoples … in order to obtain their free and informed Wet’suwet’en First Nations. “Gateway is a major consent prior to the approval of any project affect- project with significant risks. Yet, the federal gov- ing their lands or territories and other resources, ernment is advancing a decision-making process for particularly in connection with the development, Gateway without any provision for addressing abo- utilization or exploitation of mineral, water or other riginal rights and title. This is unacceptable.” resources” (article 32.2). In June 2008, legal action was brought against the While consensus on the criteria for free, prior and Alberta government by the Chipewyan Prairie informed consent remains elusive, there is growing First Nation for the granting of mineral leases to agreement that it is (1) free from coercion, manipu- MEG Energy Corporation for phase 3 of its Chris- lation, force, deception or interference by any gov- tina Lake project. The Dene were asking ernment or corporation; (2) that it occurs prior to the courts to block approval of MEG’s project until the initiation of a project; (3) that it is genuinely there was “meaningful consultation” between the 6 Alberta government and the community regarding exorably to the integrity of the land, air and water of the protection of their treaty and Aboriginal rights. their traditional lands.”24 In May 2008 the brought The tar sands leases cover over half of the Mikisew legal action against the Alberta and federal govern- Cree’s traditional territories. The Mikisew point out ments claiming that intensive industrial develop- that the Indigenous peoples of Fort Chipewyan have ment on their lands prevented them from exercising been trying since the 1960s to have their concerns their treaty rights to fish, hunt and trap. The Cree about the tar sands heard by government and indus- argued that the federal government had breached its try, with only limited success. The fact that the tar fiduciary obligations by failing to consult with them sands have been developed with “little or no regard about how the industrial development would impact of the Mikisew ’ concerns and claims” have on their rights. led the First Nation to conclude that “both levels of government have de facto extinguished the Treaty Rights of the Mikisew Cree.”25 Fort Chipewyan The Mikisew Cree people believe “it is their sacred Fort Chipewyan is downstream from the Alberta tar obligation to act as stewards of the environment in sands, one of the world’s largest industrial projects. cooperation with the government.” For the First Na- Situated on the shore of in one of tion, the survival of their ecosystem is linked to the the world’s largest freshwater deltas, the commu- survival of their culture and cannot be separated nity is home to three Indigenous peoples, the Atha- from their economic and physical well-being. basca Chipewyan First Nation, the Mikisew Cree First Nation and the Métis. The tar sands are only the latest in a series of im- pacts to hit the First Nation over the past few gen- In early December 2008, Fort Chipewyan took the erations, beginning with the fur trade, which led to federal government to court for not consulting the an influx of non-Indigenous hunters and trappers community on resource extraction activities that who contributed to the depletion of wildlife, and impact on their community. In its court documents, including the W.A.C. Bennett Dam, which led to the community lower water levels notes that the in the Athabasca government is River, and a further obliged by law drop in wildlife to consult with populations. First Nations before granting The drop in water leases to re- levels has had a source compa- negative impact on nies. In this Mikisew culture by case, the com- making it more panies include difficult for people those operating to visit traditional in the tar sands. hunting sites and spiritual gathering In its response places. The inabil- to the Oil Sands ity to use the wa- Multi- terways to travel stakeholder Community discussion in Fort Chipewyan with members of KAIROS’ delegation of across the territory Committee church, Indigenous leaders and Southern partners. Photo: Sara Stratton has also made the Panel for Phase teaching of lan- 2, the Mikisew Cree First Nation noted that the guage and traditions more difficult. As the Mikisew “Quality of life for the Mikisew Cree is linked in- point out “given these existing impacts on culture, community and lands and the prospect of more in- 7 tense oil sands development in future years, every- McKay First Nation (FN) owns the Fort McKay thing is at stake for the Mikisew Cree.”26 Group of Companies, which comprises seven cor- porations with mainly Indigenous workers. These Fort Chipewyan is also home to the Athabasca companies offer corporate clients in the tar sands Chipewyan (Dene) First Nation (ACFN). In a recent various services, ranging from janitorial work to the interview ACFN Chief Allan Adam admitted that operation of heavy machinery. many of the community’s young people work in the tar sands, where some can earn up to $100,000 per In its submission to the Oil Sands Multi-stakeholder year operating heavy equipment. But he is also con- Committee Panel for Phase 1 of the oil sands pro- cerned about the impact of the projects on his peo- jects, Fort McKay underlined its interest in enhanc- ples’ health and culture. ing its involvement in the industry, but stressed the need for it to consider future land uses. “On the one hand oil sands are good for the econ- omy, good for jobs,” Adam said. “But on the other “Fort McKay supports the development of an inte- hand, they’re bad for our health and bad for our way grated land management strategy for the oil sands of living. People are dying.”27 region. As people who refer to where they are lo- cated as ‘ground zero,’ Fort McKay expects that A recent government study was inconclusive in any Alberta strategy that is going to directly affect finding links between unusually high levels of rare them include their vision for sustainable develop- cancers in the community and effluents from the tar ment in the region.”30 sands. Dr. Tony Fields, a senior official with Al- berta Health Services, said the higher cancer rate The ACFN, the Mikisew Cree, and the Fort McKay numbers do not indicate a possible link to the envi- FN used to belong to the Athabasca Tribal Council ronment. (ATC). In 2008, the ACFN and the Mikisew Cree Mikisew Cree Chief Roxanne Marcel said the study FN pulled out of the Council because they felt it did little in finding out why so many of her people was being used by industry to facilitate access to are dying of cancer. “The question we have is what Indigenous lands and to undermine Indigenous is causing this outbreak of cancer in our commu- rights. nity, yet no one has come to us with an answer.”28 While the Fort McKay FN government continues to enter into joint ventures with industry, some of its

members are becoming increasingly concerned Fort McKay about the increase in crime, social and health prob- In some ways, Fort McKay had no choice but to lems, substance abuse and family violence, in addi- participate in the tar sands projects. Located at tion to an increase in traffic and air, water and noise “ground zero,” in the middle of the tar sands depos- pollution. its, there is no doubt the community has benefited For elder Celina Harpe, Fort McKay has been her financially. Described by some as the “richest First home all her life. She is convinced that the rash of Nation in Canada,” the primarily Indigenous com- deaths of people in their 30s and 40s, which she munity of Fort McKay is situated on the Athabasca says was unheard of before the projects started, is River, just north of Fort McMurray and in the heart linked to the oil sands: “It’s got something to do of the tar sands region. with these plants, I’m sure of it myself because I’ve been here my whole life. In our day, that’s not the In the 1960s the fur economy began a steady de- 31 cline until it collapsed in 1980. This collapse chal- way it was.” lenged the leaders of Fort McKay to search for eco- In April 2006, Fort McKay FN and the Athabasca nomic alternatives to fur trading that could support Oil Sands project, which is owned by Shell Canada 29 the community. While the fur trade was collaps- (60%), Chevron (20%) and Western Oil Sands ing the oil sands developments were just getting un- (20%), signed an agreement to develop the oil sands derway. on the treaty land of the Fort McKay FN. Recog- Today, 50 years later, the transition from a fur nized as a landmark agreement in the interactions economy to an oil economy is complete. The Fort between First Nation communities and the extrac- 8 tive sector, it was seen as a possible template for of health is a holistic one that “incorporates the future industry and First Nation partnerships that mental, physical, spiritual, emotional and social as- would “help overcome the antagonism that typifies pects of health,” and that the “health and well-being the relationship between First Nations and the ex- of individuals and communities are interdependent tractive sector.”32 and equally important.” Similarly, issues arising from resource extraction activities “need to be dealt

with holistically in order to mitigate the challenges Mushkegowuk Council in Northern Ontario and focus on obtaining the maximum benefit from Concerns about the relationship between Indigenous resource extractive development.” This means peoples and the mining sector in Ontario led the studying cumulative impacts and taking a long term provincial government to revisit its outdated Mining view of projects. Act. Indigenous peoples have been encouraged to Self-determination was seen as vital to preparing participate in this process. In December 2008 the communities for the challenges presented by re- Mushkegowuk Council in Northern Ontario issued a source extraction activities. “Each community and resolution declaring they will “accept no new min- each region is unique. The people who live in each ing activity on their homelands” until aboriginal community and each region are best situated to de- rights are respected. Specifically, the resolution termine what issues need to be addressed and how.” listed three requirements for mining activity on In- For Indigenous peoples, traditional lands contain digenous lands: traditional knowledge and foods. On these lands 1. A new Mining Act that includes provisions spiritual traditions are nourished and the language for full consent of First Nations. evolves, develops and is kept alive. With unfettered 2. Land Use Plans approved by First Nations, access to traditional lands of sufficient size and developed with adequate funding, which sets quality, Indigenous peoples are able to harvest wild- out which lands will be available for mining life, other foods and medicines. As the source of and exploration. their spiritual and moral values, Indigenous peoples can use their traditional territories to nurture and 3. Environmental assessments and permits for strengthen their self-respect and self-identity; to all mining activities. maintain their cultures; to assert their autonomy Mushkegowuk Council Grand Chief Stan Louttit over their economic, social and political futures; said Indigenous peoples “are tired of their home- and to address and alleviate ongoing social prob- lands being invaded.” He said communities are not lems. opposed to resource development, but they want Indigenous peoples are working to help govern- “full consultation, accommodation and consent 33 ments and industry understand that for them the first.” threats posed by resource extraction activities go far beyond potential environmental damage. Indige- nous peoples have a spiritual connection to the land Conclusion with traditional land use patterns and practices. The success of any initiative designed to recognize These can be undermined by industry, which in turn and uphold the connection between resource extrac- can alter the health of Indigenous peoples’ cultures tion and Indigenous rights will depend on how far it and identities. Indigenous peoples believe their sur- goes towards recognizing the holistic nature of In- vival as distinct societies and peoples depends on digenous reality. This means recognizing the impact government and corporate recognition and en- of extractive industries on Indigenous identity and forcement of their rights. Of primary importance for culture and access to traditional lands. the governments of Canada and the provinces this means ensuring that corporations collaborate with The NAHO roundtables emphasized that measuring Indigenous peoples at all stages of resource extrac- the impact of resource extraction on the health and tion projects. well-being of Indigenous communities means un- derstanding that the traditional Indigenous concept 9 The 1996 RCAP report concluded that “the Crown Ed Bianchi is the Indigenous Rights Program Coordina- is under a positive obligation to protect Aboriginal tor for KAIROS. He may be reached by email at lands and resources.” It said the federal and provin- [email protected] cial governments “must give Aboriginal nations much greater control over and access to their tradi- KAIROS: Canadian Ecumenical Justice Initiatives unites eleven churches and religious institutions in work for tional territories.”34 To guide the governments, social justice in Canada and around the globe. RCAP recommended a number of principles that included the following: BIBLIOGRAPHY o Aboriginal title is a real interest in land that contemplates a range of rights with respect Budak, Jasmine. “The Sickness.” up here (July–August 2008). to lands and resources. Canadian Press, February 6, 2009. “CNW. FNs and Enviros Join Forces to Resolve Ontario Min- o The Crown has an obligation to protect ing Crisis: Broad Support for Mushkegowuk Resolution rights concerning lands and resources that to Fix Provincial Mining Act.” Toronto. December 17, underlie Aboriginal economies and the cul- 2008. Resolution online at: tural and spiritual life of Aboriginal peo- http://www.wildlandsleague.org Info on the Mushke- ples.35 gowuk Council at: http://www.mushkegowuk.ca Consultation on Indigenous Peoples and Mining. Indigenous The RCAP report called for change in the relation- Peoples’ Declaration on Mining. May 6-16, 1996. Lon- ship between Indigenous and non-Indigenous peo- don, England. Organized by the World Council of ples in Canada. It said the “direction change must Churches. Information online at: take is toward freeing Aboriginal people from http://www.highbeam.com/doc/1P1-2272355.html and domination and dependence on the institutions and http://www.tebtebba.org/index.php?option=com_docman &task=doc_download&gid=344&Itemid=27. resources of government.” Daes, Erica-Irene A. “Indigenous Peoples and Their Relation- Independence for Indigenous peoples means greater ship to the Land.” Final paper prepared for the UN Sub- access and control over their resources. For non- commission on the Promotion and Protection of Human Indigenous peoples in Canada, it is important to re- Rights (E/CN.4/Sub.2/2001/21), June 11, 2001. (Also member that Indigenous peoples seek greater inde- cited as “Prevention of Discrimination and Protection of Indigenous Peoples and Minorities.”) pendence and autonomy in order to enhance Canada by strengthening their own communities and cul- Daes, Erica-Irene A. “Prevention of Discrimination and Pro- ture. As elder Wallace Labillois of Kingsclear, tection of Indigenous Peoples.” 13-07-2004 (E/CN.4/Sub.2/2004/30) Nova Scotia, told the RCAP commissioners: Denison, E. “Fort McKay Poised to Develop Oil Sands.” “Our survival is testament to our determination and , Alberta, Canada. July 19, 2005. will to survive as a people. We are prepared to par- Edmonton Journal, “Haida Resist Enbridge Pipeline,” ticipate in Canada’s future—but only on the terms December 3, 2008. that we believe to be our rightful heritage.”36 Fontaine, Phil (National Chief, Assembly of First Nations). The change called for by RCAP will require Indige- Speech to the Prospectors and Developers Association of nous and non-Indigenous peoples in Canada to Canada Conference. Toronto, February 12, 2008. Online at: work collaboratively to ensure that governments http://www.republicofmining.com/2008/02/12/assembly- and corporations honour existing treaties, negotiate of-first-nations-chief-phil-fontaine-speech-to-the- new ones in good faith and, in general, conduct prospectors-and-developers-association-of-canada/ themselves in a way that does not undermine or vio- Fort McKay First Nation. Submission to Oil Sands Multi- late Indigenous peoples’ rights. stakeholder Committee Panel For Phase 1. Public Consul- tation Open House. Fort McMurray, Alberta. September After all, as RCAP emphasized, the goal of Indige- 18, 2005. nous peoples is not to undermine Canada, but to “complete it.” Halvorsen, Jeffery. “Fort McKay First Nation & Shell Canada: Understanding an Oil Sands Agreement.” University of . Calgary, Alberta. April 2007. Online at:

10 http://www.ucalgary.ca/comcul/files/comcul/Jeffrey_Halv Taku River Tlingit First Nation v. British Columbia (Project orsen_(DEST).doc/ Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550 Date: November 18, 2004 Hunter, Justine. “Native Band Seeks to Halt Proposed Mine.” globeandmail.com January 6, 2009. Online at: Gladstone v. Canada (Attorney General), 2005 SCC 21, http://www.theglobeandmail.com/servlet/story/LAC.2009 [2005] 1 S.C.R. 325 Date: April 21, 2005 0106.BCTREATY06/TPStory/TPNational/BritishColumb Online at: http://scc.lexum.unmontreal.ca/scc-ellisa/search/ ia/ United Nations. United Nations Declaration on the Rights of International Conference on Extractive Industries and Indigenous Peoples. 2007. Indigenous Peoples. The Manila Declaration. Manila, http://www2.ohchr.org/english/issues/indigenous/docs/de Philippines, March 23–25, 2009. Hosted by the Tebtebba claration/ Foundation. Full text at http://www.minesandcommunities.org/article.php?a=9147 Williams, Robert A. “Encounters on the Frontiers of Interna- tional Human Rights Law: Redefining the Terms of John, Edward (Grand Chief). “The Error of Taking Away First Indigenous Peoples’ Survival in the World.” Duke Law Nations’ Land Has Not Been Corrected.” Special to the Journal, 1990. Vancouver Sun. November 19, 2008. Wolfson, Carmelle. “Defenders of the Land Take Action Lubicon Lake Indian Nation. Letter to TransCanada Pipelines. across the Country.” Rabble.ca. January 8, 2009. Online November 13, 2008. Online at: http://www.lubion.ca/ at: http://www.rabble.ca/news/defenders-land-take-action- Mikisew Cree First Nation. Proposed Options for Strategies across-country/ and Actions. Response to the Multi-stakeholder Commit- tee (MSC) Phase 2. June, 2007. ENDNOTES National Aboriginal Health Organization (NAHO). Final Re- 1 port: Roundtable Discussion Exploring Community- Assembly of First Nations National Chief Phil Fontaine— Based Responses to Resource Extractive Development in Speech to the Prospectors and Developers Association of Can- Northern Canada. Ottawa. 2008. Online at: ada Conference in Toronto on February 12, 2008. Online at: http://www.naho.ca/english/resourceExtraction/finalreport http://www.republicofmining.com/2008/02/12/assembly-of- /pdf first-nations-chief-phil-fontaine-speech-to-the-prospectors- and-developers-association-of-canada/ National Aboriginal Health Organization. (NAHO). Letter to 2 TransCanada Pipelines. February 2009. Online at Royal Commission on Aboriginal Peoples. People to People, www.naho.ca./ Nation to Nation: Highlights From the Report of the Report of the Royal Commission on Aboriginal Peoples. Ottawa: Canada North-South Institute. Free, Prior and Informed Consent and Communications Group, 1996). Page x. Online at: Indigenous Communities in Canada: Examples from the http://www.ainc-inac.gc.ca/ap/pubs/rpt/rpt-eng.asp Field, Implications for Policy and Practice. Ottawa. Feb- 3 ruary 2009. http://www.nsi-ins.ca Royal Commission on Aboriginal Peoples. The Final Report of the Royal Commission on Aboriginal Peoples. Ottawa: Royal Commission on Aboriginal Peoples. The Final Report Canada Communications Group, 1996), vol. 2. Online at: of the Royal Commission on Aboriginal Peoples. Ottawa: http://www.ainc-inac.gc.ca/ap/rrc-eng.asp Canada Communications Group, 1996. Online at: 4 http://www.ainc-inac.gc.ca/ap/rrc-eng.asp/ Carmelle Wolfson, “Defenders of the Land Take Action across the Country.” Rabble.ca. January 8, 2009. Royal Commission on Aboriginal Peoples. People to People, http://www.rabble.ca/news/defenders-land-take-action-across- Nation to Nation: Highlights from the Final Report of the country. Royal Commission on Aboriginal Peoples. Ottawa: Can- 5 ada Communications Group, 1996. Online at: The Manila Declaration. The International Conference on http://www.ainc-inac.gc.ca/ap/pubs/rpt/rpt-eng.asp/ Extractive Industries and Indigenous Peoples. Manila, Philip- pines, March 23–25 2009. Hosted by the Tebtebba Founda- Stainsby, MacDonald. “The Richest First Nation in Canada.” tion. See full text at The Dominion. Autumn, 2007. www.minesandcommunities.org/article.php?a=9147 Supreme Court of Canada. 6 United Nations. United Nations Declaration on the Rights of Haida Nation v. British Columbia (Minister of Forests), Indigenous Peoples. 2004 SCC 73, [2004] 3 S.C.R. 511. November 18, 2004. http://www2.ohchr.org/english/issues/indigenous/docs/declara tion Mikisew Cree First Nation v. Canada (Minister of Canadian 7 Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388 Date: No- Final Report: Roundtable Discussion Exploring Community- vember 24, 2005 Based Responses to Resource Extractive Development in Northern Canada. National Aboriginal Health Organization

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(NAHO). 2008. 21 Supreme Court of Canada. Haida Nation v. British Colum- http://www.naho.ca/english/resourceExtraction/finalreport/pdf bia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511. November 18, 2004. 8 Erica-Irene A. Daes, “Prevention of Discrimination and Pro- tection of Indigenous Peoples and Minorities.” Final Report to See also: Mikisew Cree First Nation v. Canada (Minister of the UN Commission on Human Rights. November 6, 2001. Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388 Date: Online at: (E/CN.4/Sub.2/2001/21) November 24, 2005; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, 9 Robert A. Williams, “Encounters on the Frontiers of Interna- [2004] 3 S.C.R. 550 Date: November 18, 2004; Gladstone v. tional Human Rights Law: Redefining the Terms of Indige- Canada (Attorney General), 2005 SCC 21, [2005] 1 S.C.R. nous Peoples’ Survival in the World”, Duke Law Journal, 325 Date: April 21, 2005 Online at: 1990: 981. http://scc.lexum.unmontreal.ca/scc-ellisa/search/ 10 “Aboriginal Peoples: Land, Health and Self-reliance.” One 22 North-South Institute. Free, Prior and Informed Consent and is a series of articles bringing together extracts from the report Indigenous Communities in Canada: Examples from the Field, of the Royal Commission on Aboriginal Peoples. Royal Implications for Policy and Practice (February 2009). Commission on Aboriginal Peoples. Ottawa. 1996. http://www.nsi-ins.ca 11 Ibid. 23 Edmonton Journal. “Haida Resist Enbridge Pipeline.” 12Justine Hunter, “Native Band Seeks to Halt Proposed December 3, 2008. Mine.” globeandmail.com January 6, 2009. Online at http://www.canada.com/edmontonjournal/new/business/story. http://www.theglobeandmail.com/servlet/story/LAC.20090106 html/ .BCTREATY06/TPStory/TPNational/BritishColumbia/ 24 Mikisew Cree First Nation. “Proposed Options for Strate- 13“Aboriginal Peoples: Land, Health and Self-reliance.” Royal gies and Actions.” Response to the Multi-stakeholder Com- Commission on Aboriginal Peoples. mittee (MSC) Phase 2. June, 2007. Page 31. 14 Erica-Irene A. Daes, “Indigenous Peoples and Their Rela- 25 Ibid. Page 4. tionship to the Land.” Final paper prepared for the UN Sub- 26 Ibid. Page 5. commission on the Promotion and Protection of Human Rights (June 11, 2001), para 124. Online at: 27 Jasmine Budak, “The Sickness.” up here. July-August 2008. (E/CN.4/Sub.2/2001/21) Also cited as “Prevention of Dis- Page 48. crimination and Protection of Indigenous Peoples and Minori- 28 Canadian Press, Feb 6, 2009 ties.” 29E. Denison, “Fort McKay Poised to Develop Oil Sands.” 15 Letter from Lubicon Lake Indian Nation to TransCanada. Edmonton, Alberta, Canada. July 2005. November 13, 2008. Online at: http://www.lubion.ca/ 30 Fort McKay First Nation. Submission to Oil Sands Multi- 16 NAHO letter to TransCanada. February 2009. Online at stakeholder Committee Panel For Phase 1. Public Consultation www.naho.ca. Open House. Fort McMurray, Alberta. September 18, 2005. 17 Grand Chief Edward John. “The Error of Taking Away First Page 1. Nations’ Land Has Not Been Corrected.” Special to the Van- 31 MacDonald Stainsby, “The Richest First Nation in Canada”. couver Sun. November 19, 2008. The Dominion. Autumn, 2007. Page 18.) 18 Royal Commission on Aboriginal Peoples. The Final Report 32 Jeffery Halvorsen, “Fort McKay First Nation & Shell Can- of the Royal Commission on Aboriginal Peoples. Ottawa: ada: Understanding an Oil Sands Agreement.” University of Canada Communications Group, 1996, vol. 2. Online at: Calgary. Calgary, Alberta. April 2007. Page 1. http://www.ainc-inac.gc.ca/ap/rrc-eng.asp 33 CNW. “FNs and Enviros Join Forces to Resolve Ontario 19 Supreme Court of Canada. Calder et al. v. Attorney-General Mining Crisis: Broad Support for Mushkegowuk Resolution to of British Columbia, [1973] S.C.R. 313 Online at: Fix Provincial Mining Act.” Toronto. 17 December 2008. http://scc.lexum.unmontreal.ca/en/1973/1973rcs0- Resolution online at: http://www.wildlandsleague.org Info on 313/1973rcs0-313.html the Mushkegowuk Council at: http://www.mushkegowuk.ca 20 Consultation on Indigenous Peoples and Mining. May 6–16, 34Royal Commission on Aboriginal Peoples. The Final Report 1996. London, England. Organized by the World Council of of the Royal Commission on Aboriginal Peoples. Volume 2, Churches. Information online at Page 568. http://www.highbeam.com/doc/1P1-2272355.html 35 Ibid., page 573. and http://www.tebtebba.org/index.php?option=com_docman&tas 36Royal Commission on Aboriginal Peoples. People to People, k=doc_download&gid=344&Itemid=27. Nation to Nation. Highlights of the RCAP. Page 127.

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