Sophisticated Marketing, Oil Companies and Indigenous Rights in Canada

With the Canadian government’s announcement that it intends to fully implement the provisions of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), alongside a 2014 Canadian Supreme Court decision that interprets the principle of  free prior and informed consent (FPIC) as requiring the permission of indigenous groups in most instances, and not simply an exercise in consultation, amidstproposals to extend pipelines,  there is a potent stew of issues that will play out in real life situations. What all of this means for indigenous rights is yet to be seen.

Yet, alongside these developments that are supportive of indigenous rights, oil companies have engaged in increasingly complex marketing and advertising approaches, according to research that was presented by AdamHarmes at the 2016 Congress of Humanities and Social Sciences. For instance: “Oil sector marketing initiatives found employees are more trustedspokespeople than CEOs. Their testimonials spoken before a backdrop of lush,forested areas are effective sales tools.”

As the push continues for permission to expand for instance, the Trans Mountain pipeline, the intersection of indigenous rights developments with oil company campaigns for support will play out in ways that test the strength of what the Canadian government intends in its announcement to fully implement the UNDRIP and the position the Canadian Supreme Court has taken on the meaning of FPIC.

Further information on Professor Harmes' research can be found at this link. 

FPIC, Canada, and yet another pipeline

The debate on the meaning of free, prior and informed consent  (FPIC) within the United Nations Declaration on Indigenous Peoples has centered around whether this gave indigenous groups the right to veto proposed projects, or whether the obligation to obtain consent simply was a mask for a consultation process—where the final views of the indigenous group did not carry any authority for a rejection of a project. 

With the recent announcement in May of the Canadian government’s intention to fully implement the provisions of the UNDRIP, the question of what position it might take on the contested meaning of FPIC becomes more than mere rhetorical speculation.

This becomes a key question as to whether a proposed pipeline project will proceed. An expansion of the Trans Mountain pipeline is opposed by the “The Stó:lō collective of First Nations in British Columbia”. The SupremeCourt of Canada, in 2014, ruled that indeed consent meant consent and not a consultation process, absent a showing by provincial or federal governments that “there is a pressing public need” for economic activity on some Aboriginal lands.  More information on that court decision can be located here. 

There is a view then, that FPIC in Canada will be seen as requiring consent, and not simply indicate that a consultation process must be undertaken. How all of this plays out, with respect to the proposed Trans Mountain pipeline, and other projects, remains to be seen.

Canada Announces Intent to Fully Implement UNDRIP

In May, Canada took further steps towards more fully supporting the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). It had been one of the four states that voted in opposition of General Assembly approval in 2007. But with an announcement by Canada’s Indigenous Affairs Minister on May 10,2016, Canada now has declared its intention to fully implement the Declaration. 

The announcement was made during a session of the UN  Permanent Forum on Indigenous Issues.

Canada reversed its initial opposition to the Declaration in 2010, when it announced its endorsement of the instrument. 

The announcement in May of an intention to fully implement is seen by some as a milestonefor indigenous rights in Canada. 

But there are mixed views on Canada’s announcement. Tori Cress, who attended the UNPFII, does not see the intentions of implementing the UNDRIP in accordance with the Canadian Constitution as a step forward for indigenous rights. 

Cress also criticizes the UNPFII as a forum dominated by state participants, leaving the indigenous participants in a “subordinate position.” 

TransCanada pursues community support for project

Even after the costly loss that TransCanada has attributed to the failed efforts to construct the Keystone XL pipeline, it appears that efforts continue to find a way forward to build it. This article reports that the company is pursuing a plan to consider the pipeline construction in the future. It is also trying to win support from communities for the construction of its Energy East project, to address "mounting opposition from First Nations and other communities along the proposed route of Energy East, including the opposition of all the mayors in the Greater Montreal region." 

Truth and Reconciliation Commission of Canada

Forcible removal of children is recognised as a form of genocide in international law. This is part of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide http://www.hrweb.org/legal/genocide.htmlas well as more recently made part of the 2007 United Nations Declaration of the Rights of Indigenous Peoples, at Article 7(2) http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf. The international position on this practice is clear.

And so it is perhaps not surprising that Canada’s Truth and Reconciliation Commission http://www.trc.ca/websites/trcinstitution/index.php?p=3has concluded that the forced removal of generations of Aboriginal children  to residential schools is “cultural genocide.” http://www.trc.ca/websites/trcinstitution/File/2015/Exec_Summary_2015_06_25_web_o.pdfThe Summary of the Final Report of the Truth and Reconciliation Commission of Canada explains the concept of “cultural genocide”:

Cultural genocide is the destruction of those structures and practices that allow the group to continue as a group. States that engage in cultural genocide set out to destroy the political and social institutions of the targeted group. Land is seized, and populations are forcibly transferred and their movement is restricted. Languages are banned. Spiritual leaders are persecuted, spiritual practices are forbidden, and objects of spiritual value are confiscated and destroyed. And, most significantly to the issue at hand, families are disrupted to prevent the transmission of cultural values and identity from one generation to the next.

But what is the significance of this finding? The term “cultural genocide” itself occupies a nebulous space within international law, according to this news analysis of the Truth and Reconciliation Commission findings. http://www.cbc.ca/news/aboriginal/cultural-genocide-label-for-residential-schools-has-no-legal-implications-expert-says-1.3110826. The question of “where do we go from here?” is addressed in this video from the Truth and Reconciliation Commission website. http://www.trc.ca/websites/trcinstitution/index.php?p=3

                

Debate on Construction of Keystone XP Pipeline Continues: Protests by the “Cowboy and Indian Alliance”

The debate about the construction of the Keystone XL pipeline has heated up again in the United States, perhaps ironically at a time when gas prices are at near record lows. The debate about the construction of the pipeline is long-running, and it is not clear if it is going to be resolved at any time soon. US President Barack Obama has pledged to veto any approval of the pipeline construction, despite both Congressional and Senate support for the bill.

Indigenous opposition to the construction of the pipeline remains steadfast, on both the Canadian and American sides of the border (see here, here and here).

The opposition to the construction of the pipeline has been the focus of organised protests in Washington DC, including a combination of ranchers and indigenous peoples who formed the “Cowboy and Indian Alliance”.   The “Cowboy and Indian Alliance” gathered for a 5 day protest in Washington DC in April 2014. 

Whether the latest actions in Washington DC around possible approval or veto of the pipeline will result in further protests by this Alliance remains to be seen. 

Post written by Dr Sarah Sargent.

Forced and Involuntary Removal of Children

In an earlier blog post, I began to address the complex topic of the intercountry adoption of indigenous children from Guatemala as one aspect of the occurrences of forced removal that is denounced by the UN Declaration on the Rights of Indigenous Peoples. This blog post picks up the topic again, looking at the practices of forced removal of children.

Involuntary or forced removal of children is not a new phenomenon or something that has been done only to indigenous children. There are historic and current examples of removal of children who are on the margins of society.
Researcher Tobias Hubinette comments on this in his chapter “From Orphan Trains to Baby Lifts: Colonial Engineering, Empire Building and Social Engineering” in the book “Outsiders Within: Writing on Transracial Adoption” published by South End Press. He comments (pg 141):

“The closest parallels to international adoption in the history of global child migration would be the 130,000 children shipped from the British Isles to populate the Empire between 1618 and 1967, and the 1000,000 American children transported by the “orphan train” from the East Coast and placed out to substitute parents in need of labor in the Midwest between 1854 and 1929.”

Removing children from their families and communities can have the devastating and obvious impacts—breaking up family units and destruction of community structures. But the harms go further and deeper. It is one way to attempt to eradicate a group if not physically then culturally. As an African-American social worker friend and former colleague once remarked to me, the most effective way to bring an end to a group of people is to take their children. The National Association of Black Social Workers (USA) has a position paper that outlines the concerns that arise due to disparate treatment of African-American children in the US foster care system and the importance of children maintaining links with their culture and community.

Forced removal of indigenous children has been given a high profile. The 2002 film "Rabbit Proof Fence" addresses forced removal of children in Australia. The ongoing Canadian Truth and Reconciliation Commission addresses the forced removal of children to residential boarding schools. And the 1979 US federal Indian Child Welfare Act was passed in order to address the high rates of forced removal of indigenous children.

Intercountry adoption is another way in which forced removal of indigenous children has occured . And this was part of the dynamic of intercountry adoption in Guatemala, which future blog posts on this topic will address.

Video "Don't Need Saving: Aboriginal Women and Access to Justice"

This is a video which must be watched. It is called "Don't Need Saving: Aboriginal Women and Access to Justice". It raises many thought-provoking issues about the lives of Aboriginal women in Canada. It provides an indigenous point of view and voice on what no doubt are issues that stir up controversy-- but need to be confronted nevertheless.

The issues raised are not unique to Canada. A report from Amnesty International "Maze of Injustice: The failure to protect Indigenous Women from Sexual Violence" details the endemic problems in the United States on issues of sexual violence and system response to Indigenous women.

The Value of Traditional Knowledge

It is becoming more common place to hear about indigenous traditional knowledge in legal academic discussions ranging across a wide variety of subjects -- human rights, intellectual property, environmental law, economic law, medical law, and cultural heritage. Traditional knowledge is a simple name for an area that is vast in scope. Just what is traditional knowledge and why is so much importance being placed on this across such a wide variety of areas of law?

A new article in National Geographic, “The Key to Understanding Climate Change: Indigenous Knowledge” ( link to article here ) highlights the ways in which indigenous knowledge is and has been important in understanding the environment. A few statistics noted in the article bear this out: “Comprising only four per cent of the world’s population (between 250 to 300 million people), they utilize 22 per cent of the world’s land surface. In doing so, they maintain 80% of the planet’s biodiversity in, or adjacent to, 85% of the world’s protected areas.”

These facts and figures alone point out the importance of indigenous peoples and indigenous traditional knowledge to the environmental health of the planet today. But there is also an important contribution to be made to scientific knowledge, again, as noted in the National Geographic article, “[indigenous] community-based and collectively held traditional knowledge accumulated and maintained through practice over countless generations, offers valuable insights into the state of the environment. Indigenous knowledge possesses chronological and landscape-specific precision and detail that is often lacking from scientific models developed by scientists at much broader spatial and temporal scale…”

The National Geographic article is not the only one to point out the benefits, and indeed, the necessity of traditional knowledge in scientific research today. An article at this link points out the valuable contribution that local traditional indigenous knowledge played in the study of the migration habits of killer whales, in research done through the University of Manitoba. The article quotes Paul Irngaut, “Inuit traditional knowledge is essential to scientific research,” Irngaut said. “It’s verified by local hunters year after year. It’s not projections or predictions — it’s current and it’s accurate.”

This is good news—but the involvement of traditional knowledge in scientific research and development comes at some risk. Whether adequate protections are provided in law and in practice is the subject of on-going debate. An article reflecting on the protections in the Kenyan Constitution ( link here ) argues that the Kenyan Constitution provides adequate legal protections for traditional knowledge. How traditional knowledge is protected and exploited in other parts of the world will be the subject of future blog posts.

More on the Tar Sands Project and Implications for Indigenous Rights and Well-Being

The controversy over the tar sands extraction and planned pipeline is featured in an article in the current edition of the International Journal on Human Rights. The article, by Jennifer Huseman and Damien Short, “A slow industrial genocide’: tar sands and the indigenous peoples of northern Alberta” examines the effects of environmental pollution on the indigenous peoples near the tar sands project. This article is important in pointing out the severe effects the tar sands project has on indigenous communities and their health.

This concern was of course outlined in the Mother Earth Accord (and which is evidence of the well-organised indigeneous activism on this and other issues) which was briefly discussed in an earlier post on this blog. The Mother Earth Accord document itself calls attention to the health problems that nearby indigenous communities have which have been “potentially linked to petroleum products”: “The Assembly of First Nations of Canada called on the United States government to take into account the environmental impacts of tar sands production on First Nations in its energy policy, citing the high rates of cancer in the downstream Fort Chipewyan community, which prominent scientists say are potentially linked to petroleum products;”

Concern about the tar sands project is not new. This link here details activity that has been ongoing to raise concerns and protest the tar sands project effects on indigenous peoples in Canada. See also this link here which raises issues about the violation of Treaty 8 in the tar sands project.

Treaty 8 is a treaty that was entered into between indigenous peoples in Canada and Queen Victoria of England. It set aside certain portions of land for the use and occupation of indigenous peoples and is one of a series of numbered treaties involving the indigenous peoples of Canada. (Click here for more information on Treaty 8)

The tar sands issue is one that has many complex and issues with both immediate and far-reaching consequences. There are short and long term environmental and health effects. There are further issues about what recognition will be given to the principle of free, prior and informed consent that is raised in the Mother Earth Accord, and is enshrined in the UN Declaration on the Rights of Indigenous Peoples. It might be tempting to think that the land-taking and disregard for not only the cultural integrity but the simple health and well-being of indigenous peoples is a thing of the past. But the tar sands issue shows that these are very much issues of the present day.

The responses of Canada and the United States, who both originally opposed the adoption of the UNDRIP, in particular to the claims raised about free, prior and informed consent, may be very telling as to how the rights in the UNDRIP will be received or resisted in these two countries.

Written by Sarah Sargent.