James Anaya

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Cases examined by the Special Rapporteur (June 2009 – July 2010)

A/HRC/15/37/Add.1, 15 September 2010



 X. Canada: The TransCanada Oil Pipeline Operation carried out in the traditional lands of the Lubicon Lake Nation and the Lubicon Land claim

104. In a letter dated 26 January 2009, the Special Rapporteur on the human rights and fundamental freedoms of indigenous people, James Anaya, called the attention of the Government of Canada to the commencement of construction of the TransCanada oil pipeline in areas within the traditional lands of the Lubicon Lake Nation. The Government responded to the Special Rapporteur’s communication by a note of 3 June 2009. The contents of both the Special Rapporteur’s communication and the Government response were included in the Rapporteur’s second annual report to the Human Rights Council (HRC/12/34/Add. 1, paras 25-51). Subsequently, during the ninth session of the Permanent Forum on Indigenous Issues in New York in April 2009, the Special Rapporteur met with a delegation of representatives of the Government to discuss the case and the larger issue of the unsettled land claim of the Lubicon Lake Nation.

105. In light of the information received on the Lubicon situation and the responses of the Government, the Special Rapporteur, in a spirit of ongoing constructive dialogue and cooperation offers observations with a series of recommendations. These observations, which were conveyed to the Government in a communication dated 31 May 2010, are included below.

Background

106. In his communication of 26 January 2009 to the Government of Canada, the Special Rappoteur expressed his concern about information received regarding planned construction of the TransCanada North Central Corridor pipeline through lands that the Lubicon Lake Nation claims as its traditional territory. According to the information, the TransCanada Corporation had obtained permission from the Alberta Utilities Commission to build the pipeline, in the absence of the Lubicon Lake Nation’s consent or recognition of the Nation’s asserted rights over the area, and in the absence of adequate consideration by Government authorities or the company of the Lubicon Lake Nation’s concerns over the health, safety and environmental impacts of the project. The communication also raised related concerns over the alleged construction of a 600-person contractor camp within Lubicon traditional territory and pointed out that the Lubicon Lake Nation was seeking an agreement for economic opportunities from the project, in addition to having its broader concerns addressed as a precondition for the project.

107. Additionally, in his communication the Special Rapporteur expressed concern over the broader issues of land rights and of social and economic conditions of the Lubicon Lake people that have been the subject of examination by United Nations treaty bodies and other special procedures mandate holders. In regard to the issues raised, his communication made reference to applicable provisions of the United Nations Declaration on the Rights of Indigenous Peoples.
108. In its communication of 3 June 2009, the Government offered its response, which was duly reflected in his second annual report to the Human Rights Council, along with the contents of the Special Rapporteur’s communication (HRC/12/34/Add.1). The Government’s response refers to the Special Rapporteur’s reference to the Declaration on the Rights of Indigenous Peoples, stating that the Declaration is not a legally binding instrument, that it does not reflect customary international law, and that Canada has expressed concerns about several of its key provisions. The Government affirms, however, that Canada continues to take action, both domestically and internationally, to promote the rights of indigenous peoples consistent with its existing human rights obligations. In that spirit, the Government provided detailed information regarding the situation of the Lubicon Lake Nation in connection with the TranscCanada pipeline and related issues.

Observations of the Special Rapporteur

The status of the Declaration in regard to Canada

109. Before addressing the issues particular to the Lubicon situation that have been raised, the Special Rapporteur will briefly address the Government’s statements in regard to the status of the United Nations Declaration on the Rights of Indigenous Peoples.

110. The Special Rapporteur does not dispute that the Declaration is not in itself a legally binding instrument. The Declaration is a resolution of the General Assembly rather than a treaty, and by its nature as such, it is not in itself legally binding, given the authority of the General Assembly under the United Nations Charter only to make “recommendations” except in regard to membership, budgetary and administrative matters. This does not mean, however, that the Declaration has no legal significance or normative weight, including in regard to Canada. It is well established that General Assembly resolutions that declare norms can build or reflect customary international law or be interpretive of already established principles or rules of international law, including the principles of human rights that are stated in the Charter and the standards of human rights in the multiple treaties to which Canada is a party.

111. As stated in the Special Rapporteur’s first report to the Human Rights Council:

Albeit clearly not binding in the same way that a treaty is, the Declaration relates to already existing human rights obligations of States, as demonstrated by the work of United Nations treaty bodies and other human rights mechanisms, and hence can be seen as embodying to some extent general principles of international law. In addition, insofar as they connect with a pattern of consistent international, and State practice, some aspects of the provisions of the Declaration can also be considered as a reflection of norms of customary international law. In any event, as a resolution adopted by the General Assembly with the approval of an overwhelming majority of Member States, the Declaration represents a commitment on the part of the United Nations and Member States to its provisions, within the framework of the obligations established by the United Nations Charter to promote and protect human rights on a non-discriminatory basis.[1]

112. The Special Rapporteur respectfully submits that the Government’s statement that the Declaration's provisions “do not reflect customary international law” is misplaced and overly broad. It is misplaced because it is based on a failure to appreciate the relation between the Declaration and widely accepted human rights principles that are undoubtedly parts of customary international law as well as treaty-based law, such as fundamental principles of non-discrimination, self-determination, cultural integrity and property. And it is overly broad because it suggests that none of the provisions of the Declaration reflects customary international law, when on a close read of the Declaration in its entirety it would be extremely difficult to sustain such a case. It is one thing to argue that not all of the Declaration's provisions reflect customary international law, which may be a reasonable position. It is quite another thing to sustain that none of them does, a manifestly untenable position. The question is not whether the Declaration in its entirety reflects customary international law, but rather which of its provisions do so and to what extent. In the view of the Special Rapporteur, a number of the provisions of the Declaration reflect customary international law—including the provisions relating to lands, natural resources and consultation that are relevant to the Lubicon matter—at least to the extent of the core principles that can be discerned from those provisions if not in all of the provisions’ details.

113. Regardless of the technical legal character of the Declaration and its various provisions, the Declaration is a strongly authoritative statement about the individual and collective rights of indigenous peoples, having been approved by affirmative votes of an overwhelming majority of United Nations Member States on the basis of the mandate of the United Nations Charter to promote human rights, and having been the product of over two decades of discussion in which many States, including Canada, and indigenous peoples from around the world actively participated. It is thus that through article 42 of the Declaration itself, the General Assembly prescribes that “States shall promote full respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration”.

114. The Special Rapporteur notes that, whereas Canada voted against the Declaration in the General Assembly, it now appears poised to endorse the Declaration. The Special Rapporteur was pleased to learn (as previously communicated to the Government of Canada in a letter of 26 March 2010) of the Speech from the Throne by the Governor General of Canada on 3 March 2010 in which Governor General on behalf of the Government of Canada acknowledged that “a growing number of states have given qualified recognition to the United Nations Declaration on the Rights of Indigenous Peoples” and affirmed that the Government “will take steps to endorse this aspirational document in a manner fully consistent with Canada’s Constitution and Laws.” The Special Rapporteur is very pleased that Canada is one step closer to formally joining in the widespread international commitment to advancing the rights of indigenous peoples as encapsulated in the Declaration.

Provisions of the Declaration relevant to the Lubicon case

115. In regard to the issues that were raised in the Special Rapporteur’s communication concerning the Lubicon Lake Nation, the Special Rapporteur would like to reiterate that Canada should pay due regard to the provisions of the Declaration that are relevant to these issues. The relevant parts of the Declaration include, inter alia, the various provisions on land rights (arts. 25, 26, and 27); the duty to consult (arts. 19, 31); self-government (art. 4); prompt resolution of conflicts and disputes with States and other parties (art. 40); and the right to redress, restitution or just, fair and equitable compensation for lands and resources taken, occupied or used without consent of indigenous peoples (art. 28).

The TransCanada pipeline project

116. The Special Rapporteur acknowledges that certain steps have been taken to address concerns about the TransCanada pipeline and the underlying or related issues having to do with land rights and the social and economic conditions of the Lubicon. The Government in its response refers to various negotiations and consultations carried out by TransCanada, the Government of Alberta and the Alberta Utilities Commission, and also affirms its understanding that TransCanada would conduct further consultations with the Lubicon Lake Nation and explore economic opportunities that may arise in conjunction with the pipeline project. The Governments maintains that these processes have allowed the Lubicon the opportunity to make known their concerns regarding the pipeline project and that, when concerns were actually raised by the Lubicon Lake Nation, those concerns were accommodated. The Government describes the decision of the Alberta Utilities Commission in its licensing proceeding that the Lubicon Lake Nation had failed to provide adequate information about its asserted rights or about the pipeline’s potential impacts on those rights.

117. The Special Rapporteur notes, however, that representatives of the Lubicon Lake Nation and independent observers have expressed a very different view about the adequacy of these proceedings and about the opportunity to be heard about the full range of Lubicon concerns in relation to the pipeline project, and that they stress, moreover, the absence of Lubicon consent to the project as it affects Lubicon traditional lands. This divergence of perspectives about the adequacy of proceedings related to planning and approval of the pipeline project is compounded by the divergence of positions on the rights of the Lubicon Lake Nation over the Nation's claimed traditional territory through which the pipeline passes. The Government points out opposing positions between it and the Lubicon over the extent to which Lubicon Lake Nation still has constitutionally-protected aboriginal rights—that is, rights based on traditional use and occupancy—over the territory it claims; as well the disagreement on issues of Lubicon jurisdiction or self-government.

The unresolved Lubicon land dispute

118. Concerns raised by the Lubicon Lake Nation over the pipeline project relate in large part to the Lubicon’s claim to rights over land traversed by the project, whereas the Government disputes such rights. It is apparent that federal and provincial government actors are proceeding to advance or facilitate development projects such as the TransCanada pipeline on the assumption that the Lubicon have no rights to land other than to the land the Government has already agreed to inc1ude in a reserve, which is only a fraction of the land c1aimed by the Lubicon and is outside of the area directly affected by the pipeline. The consultations and administrative procedures relating to the TransCanada pipeline project are premised on this assumption, which is strongly contested by the Lubicon who continue to assert aboriginal title and rights over the area.

119. In this context, it is clear that concerns over development projects such as the TransCanada pipeline and the multiple natural resource extraction operations already in place within the territory claimed by the Lubicon Lake Nation will persist until a resolution of the Lubicon land claim, and of related social and economic problems. Furthermore, it should be kept in mind that resolution of the Lubicon land dispute is a matter of international legal responsibility, as determined by the Human Rights Committee in 1990. The Committee found that historical inequities and more recent developments related to issues of lands and resources threaten the way of life and culture of the Lubicon people, thereby infringing the right to the enjoyment of culture protected by artic1e 27 of the Covenant on Civil and Political Rights.[2] The situation found by the Human Rights Committee, which still has not been resolved, implicates a range of human rights standards beyond the Covenant, including the above-mentioned standards of the Declaration on the Rights of Indigenous Peoples.

120. In its response to the Special Rapporteur’s earlier communication, the Government recounted the various efforts that have been made over a period of decades to negotiate a settlement of the Lubicon land claim, efforts made even while the State has proceeded to authorize development projects in the disputed areas. According to the Government, substantial agreement was reached in 2003 on many aspects of the Lubicon Lake Nation claim including on the location and amount of land to be inc1uded in a reserve and on various development issues. Negotiations broke down, however, because of disagreement over issues of self-government and compensation, according to the Government. The Government describes an additional offer it made in 2006 to address community construction needs immediately while continuing efforts to negotiate a settlement of any outstanding issues. The Government states that the Lubicon rejected this offer because its leadership would not negotiate an agreement that left many issues unresolved.

121. As a means of restarting negotiations, the Government has proposed to appoint an independent “Special Representative”, to be chosen with the Lubicon’s agreement, who would talk with each party separately to explore areas of compromise and means of resuming negotiations. The Special Rapporteur considers this proposal to be an interesting one and believes that it should be further developed and be given serious consideration by all concerned.

122. Undoubtedly, a complicating factor in any effort to now engage in consultations or negotiations with the Lubicon Lake Nation is the reported emergence of internal divisions among the Lubicon. The Special Rapporteur has received information that in 2009 a serious split developed among members of the Lubicon Lake Nation leading to two different groups claiming to constitute the Lubicon Band Council, the governing authority of the Lubicon people. The Special Rapporteur has also received information that, in response to the leadership dispute, the federal Government has taken over and assigned to a private sector manager delivery of essential programs and services provided to the Lubicon people with federal Government funding, and that this federal intervention has had a further debilitating effect on Lubicon society and leadership capacity.

Social and economic conditions

123. In the meantime, the Lubicon people continue to face dire social and economic conditions that are highly uncharacteristic of Canada, a country with overall human development indicators that score at or near the top among the countries of the world. In his 2009 report on his mission to Canada, the then Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Miloon Kothari, found that the Lubicon “community does not receive adequate basic services or access to water. Because of the non-resolved status of these lands, federal and provincial authorities do not agree on their competencies and responsibilities.”[3] Representative of the sub-standard conditions of the Lubicon people is the lack of piped water or sewer facilities for the hamlet of Little Buffalo, where most of the Lubicon members live, a condition confirmed by the Government in its response.

124. As with indigenous peoples around the world, such substandard living conditions are owed in significant part to what the Human Rights Committee, in examining the Lubicon situation, found to be “historical inequities and certain more recent developments” relating to the dispossession of land and impediments to the access to natural resources upon with the Lubicon Lake people traditionally have relied for their physical and cultural survival.[4]

125. The Government provides information about steps it has taken or intends to take to improve the housing and living conditions of the Lubicon Lake Nation. However, the Government asserts that the Lubicon Lake Nation has failed to comply with application and fiscal requirements for funding made available to it for this purpose, and that the Nation has rejected or failed to cooperate adequately with infrastructure development initiatives. It remains a matter of concern, in any case, that the substandard living conditions of the Lubicon people persist, as their claim to their traditional territory and secure land rights remains unresolved, all while development projects such as the TransCanada pipeline proceed to take root and operate within that territory.

Recommendations

126. Canada should give high priority to reaching a negotiated settlement of all outstanding claims of the Lubicon Lake Nation related to their land and territorial rights, with renewed and resolute steps to address those c1aims in accordance with relevant international standards. It should not escape notice that twenty years have transpired since the Human Rights Committee found Canada responsible for a violation of the International Covenant on Civil and Political rights in connection with the Lubicon land dispute, and that dispute remains unresolved.

127. In moving decidedly now to resolve the matter, due regard should be given the full range of relevant international standards as they have developed since the Committee’s 1990 decision, including those standards of the Declaration on the Rights of Indigenous Peoples. Due regard should also be given the jurisprudence of the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights which has outlined the parameters of State responsibility in regard to indigenous land and resource rights under the American Declaration on the Rights and Duties of Man and the American Convention on Human Rights.[5]

128. In light of the relevant international standards, Canada should demonstrate flexibility on its positions on the land and related issues, avoiding or moving away from hardened positions developed or anticipated for litigation, and move towards the goal of arriving at a just solution consistent with the human rights principles at stake. It should strive for creative solutions and avoid the framing of outcomes under legal characterizations of historical events—such as “extinguishment” of rights—that might deepen the Lubicon Lake Nation sense of loss and serve to harden positions on both sides. An approach of this kind may require a realignment of the government actors at both the federal and provincial levels, to ensure that those actors involved in the negotiations have the proper incentives to address the issues with flexibility, creativity and with the overarching goal of advancing human rights.

129. Given the information available about the relevant circumstances, the Special Rapporteur finds the Government's proposal for an independent “Special Representative” who would lead a mediation effort to be a potentially useful means of restarting or reinvigorating negotiations with the Lubicon Lake Nation. The Special Rapporteur recommends that the Government maintain and further develop its proposal for such a process of mediation and that the Lubicon Lake Nation seriously consider it. Assurances should be given that the person named as the mediator would be truly independent and chosen with the Lubicon’s agreement without any external pressures upon them. Assurances should also be given that the initial engagement by the Lubicon Lake Nation in such a process would be without prejudice to the Lubicon’s positions on the scope and extent of Lubicon land and related rights. At the same time, the Lubicon Lake Nation should consider the mediation proposal without preconditions about the eventual outcome of the mediation.

130. In pursing negotiations with the Lubicon Lake Nation, and in dealings with the Nation generally, care should be taken to not exacerbate or take advantage of any internal leadership divisions that may exist among the Lubicon people. Rather, federal and provincial authorities, in all their dealing with the Lubicon, should work to insure that their interaction with the Lubicon serves, as much as possible to facilitate the consolidation and strengthening of Lubicon leadership and representative structures.

131. Until the land claim is resolved, the State should act with extreme caution in relation to development projects on the disputed lands, taking care to avoid action by its constituent parts, its agents, or third parties that may prejudice or undermine the enjoyment of rights of the Lubicon people. To this end, the Special Rapporteur concurs with the recommendation of the former Special Rapporteur on housing, Miloon Kothari, that a moratorium should be place on all new oil and extractive activities—and the Special Rapporteur would add, other major development activities—in the territory over which the Lubicon assert rights.[6] Such a moratorium should remain in place until the land dispute is resolved, unless before then conditions and procedures are clearly established by which the Lubicon Lake Nation may engage in good faith consultations, with the objective of achieving agreement or consent, over those aspects of the projects that affect Lubicon rights or interests. The conditions for such good faith consultations are both a matter of Lubicon internal organizational capacity and external factors over which the State has control and responsibility. Among the minimum conditions for such consultations, provision should be made such that the identification of Lubicon rights or interests that may be affected by development projects is a joint responsibility of the State and the Lubicon; rather than responsibility of the Lubicon alone.

132. Given the overall circumstances, including the persistence in the lack of resolution of the Lubicon land dispute, and the dire and perhaps deteriorating living conditions of the Lubicon people, the Special Rapporteur believes such a moratorium is justified. The introduction of further significant development projects, without the Lubicon Lake Nation genuinely being able to influence the terms of the projects, and upon the assumption by the State that the Lubicon have no title or rights over the affected lands, necessarily prejudices the Lubicon claim to those lands and likely perpetuates the very conditions that the Human Rights Committee found to establish international legal responsibility for Canada.

133. As for those extractive activities and other development projects already in place, measures should be ensured to safeguard against and mitigate any negative impact on the health, safety and culture of the Lubicon people or on the natural environment within which they live or depend. Additionally, the Lubicon Lake Nation should be provided economic benefits or opportunities from the development activities under equitable conditions, in recognition of the status of the Lubicon people as the traditional inhabitants of the region, regardless of the ultimate disposition of the land dispute. Furthermore, ways should be explored of allowing the Lubicon Lake Nation to participate, if it so chooses, as a partner in the development activities. Good faith consultations with the Lubicon Lake Nation should be a part of the establishment and implementation of all such measures or arrangements. In this regard it should at all times be kept in mind that, while the execution of consultations with indigenous peoples is often delegated to private actors, ultimate responsibility for the consultations and their compliance with international standards remains with the State.

134. A high priority should also be placed on addressing the substandard living conditions of the Lubicon people, in adherence to Canada's obligations, inter alia, under the International Covenant on Economic, Social and Cultural Rights. Further efforts in this regard should be made independently of progress or lack thereof in the negotiations over land issues. These efforts should involve special initiatives that go beyond the funding programs that that the Government has described, given that those programs apparently have not been effective in providing an adequate and timely response to the housing, clean water and other basic needs of the Lubicon people. Close attention should be paid to administrative and fiscal requirements so that they do not ultimately impede the delivery of necessary funding and services, and the Lubicon Lake Nation should be provided assistance to build its capacity in this regard where it is lacking. The delivery of services and programs should be designed not only to improve the living conditions of the Lubicon people, but ultimately to secure the integrity of the Lubicon Lake Nation and advance its self-determination.

Initial response of the Government to the observations of the Special Rapporteur

135. In a letter of 29 June 2010, the Government responded to the observations of the Special Rapporteur, stating that, when it received the Special Rapporteur’s letter, Government officials were in the process of preparing a follow-up response to the questions raised by the Special Rapporteur during the meeting with Canadian officials during the ninth session of the United Nations Permanent Forum on Indigenous Issues in April 2010. That draft response will need to be expanded in order to address the additional matters and issues raised in the Special Rapporteur’s communication dated 31 May 2010, and this will require additional information-gathering and consultations with provincial officials in Alberta. The Government stated that, as a result, it will not be possible to provide a full response to the Special Rapporteur’s observations of 31 May 2009 by 30 June 2009 as proposed by the Special Rapporteur, and that it intends to provide such a response within subsequent weeks or months.

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NOTES

[1] A/HRC/9/9 (2008), para. 41 (internal footnote omitted).
[2] CCPR/C/30/D/167/1984 (1990), para. 33.
[3] A/HRC/10/7/ Add.3 (2009), para 75.
[4] CCPR/C/30/D/167/1984 (1990), para 33.
[5] See, e.g., Case of Mayagna (Sumo) Awas Tingni Cmty. y. Nicaragua, 79 Inter-Am. Ct.H.R. SER. C, (2001); Mary & Carrie Dann Y. United States, Case 11.140, Report No. 75/02, Inter-Am. C.H.R., Doc. 5 rev.1 (2002); and Sawhoyamaxa Indigenous Community Y. Paraguay, 146 Inter-Am. Ct. H.R. SER. C, (2006).
[6] A/HRC/l0/7/Add.3, para. 107.

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