Report by James Anaya, the UN’s special rapporteur, says there’s a ‘crisis’ in Canada

By Peter O’Neil, Vancouver Sun May 12, 2014

A report by James Anaya, the UN’s special rapporteur on the rights of indigenous peoples (pictured), said there is a “crisis” in Canada and that the level of mistrust has perhaps worsened in the past decade.     Photograph by: Sean Kilpatrick , The Canadian Press

OTTAWA — The Harper government must ensure there is “free, prior and informed consent” from First Nations before giving the go-ahead to major resource projects – including two proposed pipeline megaprojects to the B.C. coast, the United Nations said Monday.

A report by James Anaya, the UN’s outgoing Special Rapporteur on the Rights of Indigenous Peoples, said there is a “crisis” in Canada and that the level of mistrust has perhaps worsened since the last visit by a UN representative just over a decade ago.

Anaya put the two oil sands pipeline megaprojects – Enbridge’s to Kitimat and Kinder Morgan Canada’s to Burnaby – at the top of a long list of economic initiatives that have drawn bitter complaints from aboriginal leaders Anaya met during a fact-finding mission last year.

Anaya, an American indigenous rights scholar and nominee for the 2014 Nobel Peace Prize, said the government doesn’t have a coherent plan to meet its Supreme Court of Canada-mandated obligations to consult and accommodate First Nations before major projects proceed.

“There appears to be a lack of a consistent framework or policy for the implementation of this duty to consult, which is contributing to an atmosphere of contentiousness and mistrust that is conducive neither to beneficial economic development nor social peace,” Anaya wrote.

One of his recommendations calls on the federal government to set a clear policy on consultation and accommodation.

“In accordance with the Canadian constitution and relevant international human rights standards, as a general rule resource extraction should not occur on lands subject to aboriginal claims without adequate consultations with, and the free, prior and informed consent of, the indigenous peoples concerned,” stated Anaya in his report that was released in Geneva Monday.

In a Vancouver Sun interview Monday Anaya said “free, prior and informed consent,” a term used in the 2007 UN Declaration on the Rights of Indigenous Peoples, doesn’t mean there should be an Aboriginal veto on resource projects.

But he said said the commitment in the declaration, which Canada endorsed 2010, does require governments to engage in genuine consultation to ensure Aboriginal rights are protected, and to consider killing projects when accommodation can’t be reached.

The report also lists the Site C hydroelectric dam project on the Peace River, gas drilling and pipeline construction in northeastern B.C. on Treaty 8 nations’ traditional territory, and the attempts by Taseko Mines and Fortune Minerals to build mines on unceded traditional First Nations territory in B.C.

The report criticized the federal environmental review panels, saying the panelists are perceived by First Nations as having “little understanding of aboriginal rights jurisprudence or concepts.”

Anaya had a number of other tough criticisms:

– He called on the Harper to reverse his position and call for a “comprehensive, nation-wide inquiry into the issue of missing and murdered aboriginal woman and girls, organized in consultation with indigenous peoples.”

– He sharply criticized the federal government over its handing of land claims across Canada and especially in B.C., where many First Nations are deeply in debt and utterly frustrated over federal negotiating tactics.

But Anaya also found some positive developments, including the agreement late last year to establish a B.C. First Nations Health Authority. He called that a potential model for other jurisdictions.

Aboriginal Affairs Minister Bernard Valcourt cited in a statement Monday the report’s complimentary references to Canada’s track record in protecting Aboriginal peoples’ rights.

“The report published by the Special Rapporteur today acknowledges that, while many challenges remain, many positive steps have been taken by the Government of Canada to improve the overall well-being and prosperity of Aboriginal people in Canada.

He also said resource projects should be seen in a positive light.