June 12, 2019
Craig Benjamin, Amnesty International Canada

In a long overdue response to the United Nations Committee on the Elimination of Racial Discrimination (CERD), BC and the federal government actually argue that approving a massively destructive dam over the opposition of First Nations is consistent with the international human rights standard of free, prior and informed consent.

CERD is the independent expert body that provides oversight over whether or not states are complying with their legal obligations under the UN Convention on the Elimination of Racial Discrimination. CERD is also a body that has played a key role in developing the standard of free, prior and informed consent (FPIC).

CERD first expressed concern about Site C during a periodic review of Canada that took place in August 2017. At the time, CERD was so concerned about the “irreversible destruction of Indigenous lands and subsistence which will be caused by this project” that the Committee asked Canada (BC and the federal government) to report back within a year demonstrating that Canada had taken action to fulfill its human rights obligations.

When Canada missed that deadline, the Committee issued a further statement in December 2018 under a special procedure for urgent concerns. In that statement, CERD repeated its call for an immediate suspension of the dam and asked Canada to report back by early April. Two months after missing that deadline, Canada’s response is finally available.

And it’s unbelievable.

There is a positive note: Canada’s submission to CERD implicitly acknowledges the relevance of free, prior and informed consent in international law and the way that this human rights standard has been intepreted by international human rights bodies. So far so good.

However, to support the claim that it was ok to approve this massively destructive project without consent, and to plunge ahead with construction of the dam against the express wishes of the West Moberly and Prophet River First Nations, Canada twists international law into strange and unrecognizable shapes.

The key to their submission is the fact that most international human rights standards are not absolute: it’s acknowledged that there are circumstances where, as the UN Declaration on the Rights of Indigenous Peoples acknowledges, it may be necessary to limit the rights of some “for the purpose of securing the due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.” Crucially, the Declaration is clear that such limitations should only take place if they are “strictly necessary” and “non-discriminatory.”

International human rights experts, such as James Anaya, the former UN Special Rapporteur on the Rights of Indigenous Peoples, have been clear that approving large-scale projects without consent should be, at most, an extremely rare exception. Anaya wrote that as “general rule” projects should not proceed without consent. More than that, he wrote that the risk of grave harm to Indigenous peoples “weighs heavily” against any exception to the requirement of FPIC when it comes to resource development projects affecting their lands.

In other words, the bar is necessarily very high.

In its submission, Canada blithely asserts that the approval of Site C meets this test. As evidence, the submission cites the federal government’s original approval decision which claimed, with evidence, that “the concerns and interests of the Aboriginal groups have been reasonably balanced with other societal interests including social, economic, policy and the broader public interest.”

And that, essentially, is their whole argument for why their decision did not violate international law

That, and the fact that First Nations have the option to continue their legal challenge to the dam, at massive to cost to themselves and against the concerted opposition of the provincial government and BC Hydro.

Canada’s submission makes no acknowledgement that there are viable alternatives to Site C meaning that the destruction of the Peace Valley is hardly “strictly necessary.” And there’s no acknowledgement that the province’s rationale for continued construction is the contested claim that it is cheaper to continue construction than to pursue these alternatives – which hardly equates to “the most compelling requirements of a democractic society,” especially not when compared to the established severe, permanent and irreversible harms to First Nations use of the land.

Again, unbelievable.

If you’re in the Vancouver area on June 18th, there is an opportunity to hear from one of the members of the CERD Committee. Dr. Gay McDougall, an internationally renown expert on racism and human rights will be giving a free public lecture. The panel will also include Chief Roland Willson of West Moberly.

For more on aligning Canadian policy with the global human rights standard of free, prior and informed consent, see this recent open letter from the Coalition for the Human Rights of Indigenous Peoples.

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