Treaty 8 First Nations have taken their struggle against the proposed Site C Hydroelectric Dam on the Peace River into the international arena by appealing to the United Nations to intervene against the BC government to protect their interests. The appeal was issued in New York last month at the 10th annual session of the UN Permanent Forum of Indigenous Issues. Chief Liz Logan, representing the Treaty 8 Tribal Association (T8TA) was granted a rare 30-minute meeting with Special Rapporteur James Anaya to address the likely impacts that Site C would have on Treaty 8 First Nations’ health and way of life.
Treaty 8 Tribal Association opposition to Site C
In September 2010, the T8TA issued a Declaration opposing the Site C Dam and delivered a copy to the BC legislature. However, in spite of First Nations concerns, as well as opposition from non-Native farmers, ranchers, wildlife biologists and others, Premier Christy Clark has endorsed the dam and the project is moving forward into the environmental assessment phase, which is the third stage in a five stage process.
As expressed in their petition to the UN, the T8TA have little faith in BC’s environmental assessment process and believe it to be deeply flawed. Chief Logan notes that her people have yet to see the provincial government reject a single project proposal on the basis of environmental concerns. The Peace River is already the site of two dams and is currently listed as BC’s third most endangered river.
The T8TA’s Declaration on the Site C Dam calls on the government to strengthen its environmental assessment process by taking the following steps:
- Support and adequately fund a full, independent comprehensive cumulative assessment with a pre-industrial baseline of the proposed Site C Dam on the Peace River region and the Athabasca and MacKenzie Delta, including a full environmental and cultural, assessment of the impacts of the two previously constructed upstream dams, and how and will continue to impact and affect the Treaty rights and interests of the First Nations;
- Support and adequately fund a full, independent study of a” viable alternative options for the production of electricity for the Province’s needs;
- Halt any and all efforts of the proposed project until the completion of these full, independent studies;
- Re-instate the authority of the BC Utilities Commission to examine the true economic impacts to the people of British Columbia of constructing the Site C Dam; and
- Allow formal participation by First Nations in the decision making process concerning the proposed Site C Dam and to agree that where no agreement can be reached on the proposed Site C Dam to agree to appoint together with First Nations an impartial decision maker.
Appeal to a higher power?
In making their appeal to the UN, the T8TA have invoked the Declaration on the Rights of Indigenous Peoples(UNDRIP), which Canada has recently endorsed. Among other things, UNDRIP codifies the existing international legal doctrine recognizing Indigenous peoples’ right to free, prior and informed consent to development projects on their territories, which has been established in other documents and international legal decisions. This standard provides that Indigenous peoples must be informed about, and give free consent to, development projects that will affect their lands and resources prior to government approval of the process. There is a good argument to be made that any decision to approve and build the Site C Dam without obtaining the free, prior and informed consent of Treaty 8 First Nations is potentially a violation of Canada's commitments under international law.
UN Declarations are not generally considered to be legally binding; however, according the UN’s own website they do represent:“The dynamic development of international legal norms and reflect the commitment of states to move in certain directions, abiding by certain principles. This is also true of the Declaration on the Rights of Indigenous Peoples.” While Canada took the unusual step of emphasizing the non-binding nature of the Declaration at the time of its endorsement, these broader legal principles, and specifically, the international law of the Inter-American (North and South America) system of which Canada is a member, likely require Canada to obtain Indigenous consent for a massive development of this kind (for more detail, see pages 4-5 of West Coast's Backgrounder).
How likely is it that the T8TA’s appeal to the UN to intercede against the proposed Site C Dam will succeed? The UN does not have the legal ability to force either the federal or provincial government to abandon plans to proceed with the Site C Dam. However, the UN could step in to remind the provincial and federal government of Canada’s obligations under UNDRIP, or issue a public statement condemning the government’s decision to proceed with the dam at the expense of the rights of Treaty 8 First Nations.
Not the first time that First Nations fight a mega-dam at the UN
In the past, Indigenous nations have had some success in using the international arena to bring pressure on domestic governments. For example, in 1990 sixty Inuit and James Bay Cree made a 1200-mile kayak/canoe journey down the Ottawa and Hudson Rivers, ultimately landing in Battery Park in New York City, to protest Hydro-Quebec’s Great Whale Dam proposal in Northern Quebec. Grand Chief Matthew Coon Come, who led the journey, referenced the UN Universal Declaration on Human Rights to argue that his people’s human rights under international law would be violated by the proposed Great Whale dam.
The appeal attracted widespread media attention and in 1992 it contributed to the New York Power Authority’s decision to withdraw from a 17 billion dollar agreement to purchase power from Hydro-Quebec. In 1994, in part due to this cancellation, negative media publicity and an in-depth court-mandated environmental review process, the Quebec government pulled the project. The victory of the James Bay Cree meant that critical habitat for beluga whales, freshwater seals, fish, inland caribou and other animals was preserved, as were the traplines and hunting grounds of the Cree.
In the case of the Cree and their successful struggle to stop the Great Whale Dam, the appeal to the international community and the UN was just one strand of a multi-faceted resistance effort. Similarly, the T8TA’s appeal to the UN for assistance is part of a broader effort involving public education, government negotiations, legal advocacy based on Treaty rights, and the forging of alliances with non-First Nations who are also deeply concerned about the environmental and social impacts of the proposed Site C Dam. As with the Great Whale Project, much is at stake. If the UN does choose to make a public statement about the project, as requested by the T8TA, it will send a strong message to the BC government that the international community stands behind the claims of Treaty 8 First Nations that their rights under domestic and international law be upheld and respected.
By Hannah Askew, Legal Intern
Hannah joins WCEL from Osgoode Hall Law School, where she is a student. She holds MA degrees in history and anthropology, and prior to law school taught in the Aboriginal Justice Studies Program at the Native Education College in Vancouver.