Justice in an Unconventional World: First Nations' Treaty Rights and Procedural Climate Justice in Alberta's Oil Sands Region

• Author: Cameron S.G. Jefferies
• Pages: 233-264

233

Justice in an Unconventional

World: First Nations’ Treaty

Rights and Procedural

Climate Justice in Alberta’s

Oil Sands Region

Cameron S.G. Jefferies*

Introduction .................................................................................................233

I. Canada’s Emergent Climate Justice Movement .....................................238

II. Oil Sands, Treaty 8, and Climate Change .............................................240

A. e Oil Sands and Greenhouse Gas Emissions ...............................240

B. Treaty 8 and Climate Change .........................................................242

III. Existing Procedural Mechanisms and Corresponding Limitations ........ 245

A. e Constitutional Duty to Consult and Accommodate .................246

B. Environmental Assessment .............................................................252

IV. Practical Solutions ................................................................................256

A. Revisiting the Duty to Consult .......................................................259

B. Revamping Environmental Assessment ...........................................261

Conclusion ...................................................................................................263

Introduction

Canada is at a crucial juncture for both environmental law and First Nations1

relations. With respect to environmental law, Canada’s retreat from science-

1. Section 35 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, ch. 11 (U.K.)

(Constitution Act) denes “aboriginal peoples of Canada” as “Indian, Inuit and Métis.” is deni-

tion is controversial as it incorporates language from the long-standing and intensely colonial Indian

Act, which has been used by the federal government for the registration of status-Indians, for benet

determination, and also individual and community marginalization and disenfranchisement. In this

chapter, the term “First Nation” will be used, recognizing that Aboriginal and indigenous are also

frequently used. e Inuit (Canada’s northern Aboriginal peoples) and Métis (individuals of both

Aboriginal and European heritage) are not the focus of this chapter.

* e author gratefully acknowledges Heather Parker for her able and enthusiastic research

assistance. Ms. Parker graduated from the Willamette University College of Law in May

2016.

Chapter 9

234 Climate Justice

based precautionary decisionmaking and ecosystem-based management

under Prime Minister Stephen Harper’s federal Conser vative government

(2006–2015) has been wel l described and critiqued.2 In addition to sweep-

ing amendments to long-standing federal statutes, deep budget cuts to envi-

ronmental agencies and research funds, and the abolition of the national

environmental advisory board, the Conservative government’s regression

and stagnation was particula rly pronounced in the area of climate change

law and policy. Internationally, Canada became the rst nation to withdraw

its ratication of the Kyoto Protocol,3 further cementing its reputation as a

climate lagg ard.4 Domestically, and despite broad federal reg ulatory powers

aorded by virtue of greenhouse gases (GHGs) being listed as “toxic sub-

stances” under t he Ca nadian Environmental Protection Act, 1999,5 Cana-

dian emissions continued to rise t hrough 2014, driven largely by oil and gas

sector emissions, which were exempted from Canada’s sectoral response.

Turning to Aboriginal relations, Canada continues to atone for ma ny

colonial and post-colonial wrongs, and this c hapter’s climate justice d iscus-

sion must be understood within this broader context. Particula rly notewor-

thy injustices include: (1) the custod ial state-sponsored relig ious residential

school program that ran from 1880 until the mid-1990s. Driven by a Euro-

centric worldview of culture and civi lization, the residentia l school program

forcibly separated Aboriginal children from their families and communi-

ties to “k ill the Indian in the child.”6 e abuses suered by many of the

150,000 children who attended the residential school system produced

intergenerational trauma , precipitated the largest class action settlement

in Canadia n history in 2007,7 elicited a forma l apology from then-Prime

Minister Harper in 2008,8 and spurred the creation of a Truth and Rec-

onciliation Commission to initiate and pursue the hea ling process9; (2) the

2. See Robert B. Gibson, In Full Retreat: e Canadian Government’s New Environmental Assessment Law

Undoes Decades of Progress, 30 I A  P A 179 (2012); Nigel Kinney,

Burning Down the House: Environmental Policy Dismantling by the Harper Government, in T H

R: 2008–2015, at 337–47 (Teresa Healy & Stuart Trew eds., 2015); C T, T W

 S: M S  W B  S H’ C (Nancy

Flight et al. eds., 2013).

3. Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 10, 1997,

37 I.L.M. 22.

4. See Cameron Jeeries, Filling the Gaps in Canada’s Climate Change Strategy: “All Litigation, All the

Time. . .”?, 38 F I’ L.J. 1372 (2015).

5. Canadian Environmental Protection Act, 1999, S.C. 1999, ch. 33, §64.

6. Truth and Reconciliation Commission of Canada, About the Commission, http://www.trc.ca/websites/

trcinstitution/index.php?p=39 (last visited Aug. 22 2016.

7. Id.

8. Id.

9. e Truth and Reconciliation Commission produced a nal report in 2015. Titled H 

T, R   F (2015), this report provides an extensive history of these

Justice in an Unconventional World 235

disproportionate rate at which Aboriginal women and girls are murdered

or disappear, as brought to light by Amnesty International’s 2004 report,

“Stolen Sisters: A Human Rights Response to Violence and Discrimina-

tion against Indigenous Women in Canada”10; (3) the heightened rate of

suicide attempts and deaths amongst First Nations youth, as most recently

exemplied at the Att awapiskat First Nation in northern Ontario where a

state of emergency was declared for the community of 2,00 0 people after 28

suicide attempts occurred in March 2016, followed by 11 more on one day

the following month11; and (4) the ongoing investigation into third world

living conditions on many reserves, as exemplied by a clean drinking water

crisis,12 which the United Nations Committee on Economic, Social, and

Cultural R ights (CESCR) called on C anada to rec tify a s recently as March

2016.13 According to Ja mes An aya, former special rapporteur on the rights

of indigenous peoples, “Canada faces a continuing crisis when it comes to

the situation of indigenous peoples of the country.”14 Moving forward, the

raison d’ être of enhanced Aboriginal relations and cri sis resolution (and ide-

ally prevention) must be the meaningfu l reconciliation of First Nations and

non-First Nations peoples in our shared countr y.15

Two signicant Canadian elections in 2015 have shifted ocial policy

and rhetoric and promise meaningf ul reform of climate change law and First

Nations relations. First, on May 5, 2015, the province of Alberta—home to

the oil sands—voted out a Progressive Conservative government that had

been in power for 44 consecutive years in favor of the social-democratic New

Democratic Party (NDP) led by Premier R achel Notley. en, on October

20, 2015, the federal election replaced the Conservative government with

a Libera l government, led by Prime Minister Justin Trudeau. ough it is

events and then oers a number of calls to action in the context of future reconciliation.

10. S V A W, A I, S S: A H R

R  V  D A I W  C (2014).

11. Attawapiskat: Four ings to Help Understand the Suicide Crisis, T G  M, July 8, 2016, http://www.

theglobeandmail.com/news/national/attawapiskat-four-things-to-help-understand-the-suicidecrisis/

article29583059/.

12. Maya Basdeo & Lalita Bharadwaj, Beyond Physical: Social Dimensions of the Water Crisis on Canada’s First

Nations and Considerations for Governance, 23 I P’ J. 1 (2013); Lalita Bharadwaj, Vulner-

ability of First Nations Communities in Canada to Environmental Degradation, in I  C

C  W  H (Velma I. Grover ed., 2012); Joanne Levasseur & Jacques Marcoux,

Bad Water: “ird World” Conditions on First Nations in Canada, CBC, Oct. 15, 2015, http://www.cbc.

ca/news/canada/manitoba/bad-water-third-world-conditions-on-rst-nations-in-canada-1.3269500.

13. Concluding Observations on the Sixth Periodic Report of Canada, U.N. Committee on Economic, Social,

and Cultural Rights, U.N. Doc. E/C.12/CAN/CO/6 (2016).

14. e Situation of Indigenous Peoples in Canada: Report of the Special Rapporteur on the Rights of

Indigenous Peoples, James Anaya, U.N. Human Rights Council, 27th Sess., Agenda Item 3, U.N.

Doc. A/HRC/27/52/Add.2 (2014).

15. Tsilhqot’in Nation v. British Columbia, [2014] 2 S.C.R. 257, para. 82.