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Indigenous rights “serious obstacle” to Kinder Morgan pipeline, report says

Pipeline company downplaying major legal and financial risks of crossing unceded First Nations territory in British Columbia

Secwepemc activist Kanahus Manuel in front of a tiny house being built in path of Kinder Morgan pipeline’s planned route through her Nation’s territory in British Columbia, Canada.
Secwepemc activist Kanahus Manuel in front of a tiny house being built in the path of Kinder Morgan pipeline’s planned route through her Nation’s territory in British Columbia, Canada. Photograph: Ian Willms/Greenpeace

The controversial expansion of a pipeline that would carry tar sands crude from Alberta to British Columbia’s coast will be doomed by the rising power of Indigenous land rights.

That’s the message that Kanahus Manuel, an Indigenous activist from the Secwepemc Nation in central BC, plans to deliver to banks financing the project as she travels through Europe this week.

She’ll have in hand a report being released today by the Indigenous Network on Economies and Trade, which argues that Texas-based Kinder Morgan has misled financial backers about the risks of expanding its TransMountain pipeline, almost half of which runs across “unceded” Secwepemc territory.

The project, whose cost has ballooned from $5.4 to $7.4bn, would nearly triple capacity on an existing pipeline to ship 890,000 barrels a day to Asian markets, locking in expanded production of one of the world’s most carbon-intensive oils.

The report details “significant legal, financial and reputation risks” that amount to “serious obstacles” it says have been downplayed by Kinder Morgan in its dealings with Canadian and international banks.

The key risks, identified by economists and lawyers based on the pipeline’s history, Canadian legal precedents, and financial documents, include Kinder Morgan’s plans to build on lands whose ownership is hotly contested.

The pipeline crosses 518km of Secwepemc territory over which the First Nations assert Aboriginal title, a type of land rights that the supreme court of Canada has recognized were never ceded or relinquished through treaties.

TransMountain pipeline’s route through the Secwepemc Nation in British Columbia, Canada.

The Secwepemc could not oppose the original Trans Mountain pipeline being built through their territory in 1951, because it was illegal at the time for Indigenous peoples to politically organize or hire lawyers to advocate on their behalf.

“[Kinder Morgan] either does not understand the diverse realities of Indigenous rights in Canada or they are wilfully ignoring the consequences of those rights for the project,” the report says. “Either way, it should be a major red flag for investors, lenders, and other financial backers.”

Kinder Morgan did not return a request for comment.

Banks are increasingly rethinking their investments in the tar sands – French bank BNP Paribas pledged last week to stop financing pipelines carrying tar sands oil, following similar moves by Dutch Bank ING and Sweden’s largest pension fund AP7.

The report also notes that the likelihood of increasing Indigenous protest has not been accounted for by the company.

Inspired by her time at the Standing Rock encampment, this fall Manuel and others finished constructing the first of several tiny houses – to be outfitted with solar-panels – that they will place in the path of the pipeline as an act of defiance.

“We will defend with all of our capacities our unceded lands and waters from this climate chaos-fuelling pipeline,” Manuel said from Europe. “The government has to follow the minimum standards laid out in the United Nations Declaration on the Rights of Indigenous Peoples – that includes free, prior and informed consent, which they have not gotten from us for the project. Instead Kinder Morgan is hiding the risks and the costs their backers will face when this pipeline doesn’t get built.”

Kinder Morgan’s initially estimated the pipeline would be in operation by late 2017, but delays have pushed back the date to spring 2020.

Each month of delay costs the company $5.6m in expenses and $88m in lost revenue, according to an affidavit Kinder Morgan filed in court during a stand-off near Vancouver in 2014, when 100 Indigenous and non-Indigenous activists were arrested trying to block exploratory drilling by the company.

The pipeline project has the backing of the Alberta government and prime minister Justin Trudeau, whose natural resources minister has previously suggested the government could call in the Canadian military to deal with protests, evoking the prospect of what First Nations leaders have labelled a “Standing Rock of the North.”

The Trudeau government approved the pipeline in 2016, but the recently-elected NDP provincial government in BC has said it “would employ every tool available” to stop it. Both governments have committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples.

The BC government joined as an intervenor in federal court of appeal hearings last week, supporting legal challenges against the pipeline launched by First Nations closer to the coast, municipalities, and environmental organizations.

The report comes on the heels of TransCanada withdrawing its application to build Energy East, the largest proposed tar sands pipeline that would have carried 1.1m barrels daily to the east coast.

It was hobbled by political protests, as well as the recent introduction of a “climate test” that would evaluate how the project might impact Canada’s overall carbon emissions.

Research by the Canadian Centre for Policy Alternatives has found that Canada cannot build new tar sands export pipelines and expand production and still hope to meet its Paris accord climate commitments.

See article here……

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Indigenous chief says Trudeau needs ‘wake-up call’ on land rights

 

The Globe and Mail by Sunny Dhillon / Thursday, Aug. 17, 2017

First Nations leaders have expressed their concerns about the treatment of Indigenous people in Canada to a United Nations committee that examines racial discrimination – and one chief says the Prime Minister needs a “wake-up call.”

Representatives from several Indigenous Nations held a news conference in Vancouver on Thursday, fresh off their meeting with the UN committee in Geneva earlier this week.

Judy Wilson, chief of the Neskonlith Indian Band and secretary-treasurer with the Union of BC Indian Chiefs, said Canada cannot present itself as a leader on human rights when its land-rights policies aim to extinguish Indigenous title.

“What we spoke [to] was mainly about the land rights of our people. We cannot continue to have the Crown say they have underlying title to our lands when it’s actually the Indigenous First Nations across Canada that hold that title,” she told reporters.

The federal government has committed to “a renewed, nation-to-nation relationship with Indigenous peoples based on recognition of rights, respect, co-operation and partnership, and rooted in the principles of the United Nations Declaration on the Rights of Indigenous Peoples.”

But Ms. Wilson said Ottawa needs to work more directly with the Indigenous Nations themselves. “The Prime Minister really does need another wake-up call,” she said.

A statement from the office of the Minister of Indigenous and Northern Affairs said the federal government remains fully committed to implementing the UN Declaration on the Rights of Indigenous Peoples and to consulting and working in partnership with Indigenous people.

The statement said the government’s consultations have begun, with the Minister of Justice leading a working group that will ensure Canada lives up to its obligations under the UN declaration and the federal Constitution.

“We need to get this right, and we will continue to work in partnership, on a whole-of-government approach, to renew our relationship and advance reconciliation,” the statement read.

The Committee on the Elimination of Racial Discrimination monitors how effectively member countries implement a UN anti-discrimination convention. Canada is a signatory to the convention and must report to the committee every two years.

The submission to the committee by the Union of BC Indian Chiefs said it is “presently witnessing a great divide between the words of the Canadian government and its actions on the ground.”

The submission highlighted several areas of concern, including land title, energy projects, forestry and housing.

It said the Trans Mountain pipeline project – which the federal government approved last year – “poses an unacceptable risk to the health, safety and livelihoods of First Nations throughout British Columbia.”

It went on to say forestry activities in B.C. continue to affect the territories of Indigenous nations “with little or no benefit to them.”

On housing, the submission said Indigenous people experience disproportionately poor living conditions on- and off-reserve. It called the amount of federal funding for First Nations housing “critically low.”

Chief Bob Chamberlin, vice-president of the Union of BC Indian Chiefs, said the fact Indigenous groups must still travel to international forums “to expose Canada’s dirty secret of racism towards First Nations people” is a significant issue.

The committee received submissions from about 20 Indigenous groups, including the Assembly of First Nations and the Native Women’s Association of Canada.

The committee is expected to release its initial comments on Friday.

See article here……..


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SCC (Supreme Court of Canada) rulings suppress Indigenous peoples’ rights to their land

The Globe and Mail by TRACEY LINDBERG and ANGELA CAMERON/  Friday, Jul. 28, 2017 1:06PM EDT

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The Liberals’ plans for Indigenous reconciliation are just beads and trinkets

As the Assembly of First Nations prepares for its annual general assembly, the Liberals try to repackage old promises as new principles

McLeans by Pamela Palmater / July 24, 2017

Canada's Prime Minister Justin Trudeau (C) stands with Justice Minister Jody Wilson-Raybould (L) and Assembly of First Nations National Chief Perry Bellegarde during an opening ceremony at the Assembly of First Nations Special Chiefs Assembly in Gatineau, Canada, December 8, 2015. (Chris Wattie/Reuters)

(Chris Wattie/Reuters)

Pamela Palmater is a Mi’kmaw citizen and member of Eel River Bar First Nation. She has been a practicing lawyer for 18 years and currently holds the Chair in Indigenous Governance at Ryerson University.

Many First Nations in Canada breathed a collective sigh of relief when former Prime Minister Stephen Harper and his Conservative government were defeated in the last federal election. After a decade of troubling legislation and aggressive extraction and development activities on Indigenous lands, Prime Minister Justin Trudeau’s commitment to a renewed nation-to-nation relationship with First Nations was a welcome relief to many. Trudeau’s pre-election commitments to repeal Harper’s laws, lift the 2-per-cent funding cap on First Nation social programs and implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) ultimately became his post-election Indigenous platform.

But almost two years have passed and very little, if any, substantive progress has been made on these commitments. The Assembly of First Nations (AFN)’s annual general assembly (AGA) starts on July 25 and, with numerous federal ministers slated to be in attendance, the pressure for the Liberal government to be held to account to the chiefs for their inaction will be high.

READ MORE: On First Nations issues, ‘sunny ways’ was just a phase

Given their lack of progress on Trudeau’s commitments, what could the Liberals possibly report at the assembly? To date, the Liberal government has either broken or failed to act on every single commitment Trudeau has made, and there are only so many times that the same promises can be held up as new or historic announcements before even the most trusting leaders see through the ruse. Trudeau has used the same pre-election promises as a historic announcement at the 2015 AFN AGA, at the 2016 AGA, and—not surprisingly—has managed to repackage the same promises into yet another announcement in the weeks leading up to the 2017 AGA: a memorandum of understanding between Canada and the AFN. However, the joint priorities contained in this MOU are far weaker than Trudeau’s previous promises, and specifically exclude those promises for which he has been criticized for failing to implement, i.e., the repeal of Harper’s laws and the removal of the 2 per cent funding cap.

But Trudeau is not the only one scrambling to think of new, historic or unprecedented announcements to make at this year’s AGA. Justice Minister Jody Wilson-Raybould was widely criticized for her position that the implementation of UNDRIP into law in Canada was “unworkable” and only served as a political distraction. While she subsequently attempted to clarify her position by stating that Canada’s commitment to implementing UNDRIP was unconditional, she nevertheless confirmed that UNDRIP would be limited by section 35 0f the Constitution and the many court decisions which have justified the infringements of the Aboriginal and treaty rights contained therein. Wilson-Raybould has also confirmed that her first priority as Attorney General of Canada is to uphold all of Canada’s laws (versus Indigenous laws) and that reconciliation with Indigenous peoples can only happen through a process of federal recognition—that is, under federal laws, within the context of Canada’s asserted sovereignty and subject to Canada’s constitution.

This leaves little doubt that the Liberal plan is less about true nation-to-nation relations and actual implementation of Indigenous rights and more about repackaging the Liberals’ same old legal and policy positions into a flashy announcement for the AGA. Wilson-Raybould’s recently released “Principles respecting the Government of Canada’s relationship with Indigenous peoples” document sounds very similar to the former Liberal government’s 1995 Inherent Right Policy and previous MOUs between Canada and the AFN. For example, the first principle states that Canada recognizes “the right to self-determination”—something the Liberal government acknowledged with the AFN in an MOU in 2005. This first principle goes on to provide that Canada now recognizes the “inherent right of self-government”—something the Liberals’ Inherent Right Policy did more than 20 years ago. Principle number four speaks about Indigenous self-government as being part of Canada’s cooperative federalism—just like the Inherent Right Policy’s principle that all Indigenous governments would operate within the Canadian federation. The rest of the principles are extracted directly from the 1995 Inherent Right Policy, the 2005 Liberal MOU and the numerous Supreme Court of Canada decisions related to Aboriginal and treaty rights.

READ MORE: Perry Bellegarde on recognizing this land’s founding Indigenous peoples

Given the constitutional and international legal protections, Canada should have been respecting the right of self-determination, Aboriginal and treaty rights, and Indigenous land rights long ago. Certainly, an announcement that Canada intends to start respecting the same laws that they have instead “honoured more in the breach” than in the observance is no change to the same status-quo relationship of endless broken promises. If the Liberals had any real intention of respecting Indigenous rights—including the decisions of Canada’s courts and tribunals—then the government would not have failed to implement the decision of the Canadian Human Rights Tribunal on discriminatory underfunding for First Nations children in care; it would not be battling Sharon McIvor at the United Nations to deny her equality rights, nor would it approve mines, forestry and pipelines on our lands without our consent.

These principles, as problematic are they are, should never have been announced as the basis of the new relationship, but should instead have been sent as an internal memo to Cabinet instructing them to once and for all start abiding by the rule of law over which Wilson-Raybould appears so protective. Please don’t insult our leaders and try to pass off these old beads and trinkets as new gifts to cement the same tired relationship. The Liberal government should step up and address the suicide crisis, over-incarceration crisis, health crisis, housing and water crisis; it should send all our children to proper schools, eliminate gender inequality in the Indian Act, reset the national inquiry into murdered and missing Indigenous women and girls and stop fighting First Nation children in foster care and abide by the court decision. When the Liberals put some action to their tired, recycled promises, then we’ll know that reconciliation is possible.

More on Maclean’s: Indigenous activists demand action at Canada Day picnic


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First Nations bear brunt of B.C.’s sprawling fracking operations: New Report

Desmog By Judith Lavoie / Tuesday, July 4, 2017

A patchwork of roads, ditches and unauthorized dams are scarring First Nations territories in north east B.C. while water sources are being jeopardised by natural gas companies using hundreds of thousands of cubic metres of water for fracking, according to a study conducted for the Canadian Centre for Policy Alternatives.

A sharp increase in fracking operations is underway in B.C. but First Nations have little say in decisions about how the companies operate on their traditional lands, finds the study, written by Ben Parfitt, CCPA resource policy analyst.

Today, in the more remote reaches of northeast B.C., more water is used in fracking operations than anywhere else on earth — and substantial increases in water use will have to occur in the event a liquefied natural gas industry emerges in B.C.,” the paper states.

Fracking is the practice of pressure-pumping immense quantities of water, deep below the earth’s surface, to fracture rock in order to release trapped gas.

It is easy to see how all that water use, which ultimately results in the water becoming heavily contaminated, poses increased risks both to surface waters and below ground or groundwater sources such as aquifers,” says the study, which points out that more water is used in B.C. fracking operations than anywhere else in the world.

A previous CCPA study found that, between 2012 and 2014, water use at fracked gas wells in the Montney and Horn River Basins, the region’s two major basins, climbed by about 50 per cent.

Natural gas drilling and fracking operations have devastated local First Nations, steadily eroding their ability to hunt, fish, trap and carry out other traditional practices, which are supposed to be protected by Treaty 8,” said Parfitt, who last month revealed that dozens of unauthorized dams had been built in the same area to trap water used in fracking operations.

Parfitt found that two of the dams built by Progress Energy, a subsidiary of Malaysian-owned Petronas, were so large they should have been reviewed and approved by the province’s Environmental Assessment Office.

In addition to the effect on First Nations lands, there is concern that fracking operations are known to trigger earthquakes and there is no guarantee that the dams are safe.

The B.C. Oil and Gas Commission found that, in 2015, fracking by Progress Energy, north of Fort St. John, triggered a 4.6 –magnitude earthquake.

Now, with growing concerns about the amount of water being used by the industry, it is time First Nations were given more control over what happens on their land, Parfitt said.

Although First Nations receive advanced notice of fossil fuel industry development planned for their territories, they have little influence on the timing, rate or location of company operations and there is growing frustration over the inability to look at cumulative impacts or what constitutes a reasonable amount of industrial activity within a watershed, according to the study.

Some First Nations are resorting to legal action and the Fort Nelson First Nation, a Treaty 8 signatory, succeeded in having a water licence within its’ territory cancelled while the Blueberry River First Nations is suing the provincial government for cumulative damages to its territory from multiple industrial developments.

Three-quarters of Blueberry River territory is just 250 metres away from a variety of industrial disturbances, according to members. The potentially precedent-setting case is likely to be heard next year.

The new NDP government in B.C., propped up by support from the Green party, has not made any promises regarding fracking in B.C. although a joint agreement signed by both parties vowed to honour the UN Declaration on the Rights of Indigenous Peoples. Green party Leader Andrew Weaver has previously called for a moratorium on fracking in B.C. until the risks of the process can be more fully understood.

Parfitt said that, if B.C. is going to respect the UN Declaration on the Rights of Indigenous Peoples, there must be changes.

To start, we need to end the current death-by-a-thousand-cuts approach, where First Nations are simply asked to respond to one proposed industrial development after another, and, instead, place First Nations firmly in the driver’s seat when it comes to guiding activities in local watersheds,” Parfitt said.

Meaningful consultation needs to take place well before activities occur, he said, noting that disturbance to the land for fracking operations ranges from logging to construction of wastewater containment ponds.

The report recommends that, instead of First Nations simply being asked to respond to government and industry referrals, the province should bring in new co-management regimes, with First Nations and government working together.

The system could be similar to that on Haida Gwaii, where the Haida Nation co-manages the Gwaii Haanas national park reserve and Haida heritage site with the federal government and co-manages forest resources on the north of the islands with the provincial government.

Other recommendations include:

  • Setting maximum natural gas extraction limits on a watershed-by-watershed basis.
  • Creating no-go, drill-free and frack-free zones, including protected areas where healthy, functioning ecosystems are maintained so that indigenous rights can be fully exercised.
  • Charging more for industrial use of water, in hopes of encouraging conservation, and investing those funds in water studies and enhanced water protection.
  • Requiring fossil fuel companies to detail exactly where they intend to operate over the long-term, so decisions on industry development and water withdrawals can be made in the context of cumulative regional impacts. The system would be similar to requirements that the logging industry give 20-year development plans detailing where they are proposing to build roads or log.

There is an urgent need to embrace these recommendations — and more — in light of what First Nations contend with in the face of modern-day natural gas industry operations,” says the study.

All natural resources, particularly water resources, are finite. They sustain lands and resources that First Nations have relied on since time immemorial. They must be managed with that in mind.”

Image: Caleb Behn, indigenous rights advocate, has fought for years to prevent the negative impacts of fracking on indigenous lands in B.C. Photo: Fractured Land

See article here……..