Can The “Duty To Consult” Strengthen Sustainability?
By Jim Harding
SASKATCHEWAN SUSTAINABILITY – from R-Town News Sept. 04.09
The geological formation, the Athabasca Sandstone, which spreads into northern Alberta and Manitoba, contains the highest grade uranium in the world; and the Athabasca region has the most intense uranium exploration and mining activity anywhere. This is traditional Denesuline territory and yet communities like Fond du Lac, Black Lake and Hatchet Lake have never been consulted about the expansion of uranium mining, with its toxic, radioactive legacy. Thankfully, the Duty to Consult is starting to get more attention. It comes from the right to “free, prior and informed consent”, which rules out monetary or other inducements and requires sufficient time to consider all relevant information before consenting or not to any proposed resource extraction project.
This right now exists in international law. Article 32 of the 2007 UN Declaration of the Rights of Indigenous Peoples calls for such consent, “particularly in connection with the development, utilization or exploitation of minerals, water or other resources.” Article 29, which emphasizes consent before hazardous wastes are stored or disposed on Indigenous lands, is particularly pertinent to the toxic, radioactive operations of the uranium industry here. Support for such consent also comes from the UN Committee on the Elimination of Racial Discrimination and the International Labor Organization (ILO) Convention 169.
Those promoting the nuclear industry in Saskatchewan dance around the Duty to Consult. The Uranium Development Partnership (UDP) Report says, “The process to fulfill the duty to consult with First Nations and Métis communities is not sufficiently defined.” But its’ concern is not about respecting Indigenous rights, but, as it says, that “The lack of a clear process may create an impediment to further exploration and/or development in the Province” (p. 27). Rather than coming out in support of the Duty to Consult, the UDP recommends that Saskatchewan should simply “work with the Federal government to establish clear parameters and accountability …”
Don’t hold your breath. While Canada played a vital role in the drafting of the 50-year old UN Declaration of Human Rights, and our Supreme Court has recently affirmed the Duty to Consult, Canada’s Conservative government almost stands alone globally in refusing to endorse the 2007 UN Declaration. While this doesn’t reduce the international standing of the Declaration, it shows that, under Harper, Canada has become a rogue state regarding human rights.
Given the past performance of the nuclear industry, Indigenous communities will understandably be wary of any pretense to consult. Indigenous communities were consistently sidelined from decision-making when uranium mines started up around Uranium City to supply uranium for nuclear weapons in the 1950s. Aboriginal Rights were excluded from the Cluff Lake Board of Inquiry (CLBI) when it explored uranium mining expansion in the late 1970s. The recommendation in 1993 by the Joint Federal Provincial Panel (JFPP) on Uranium Mining, that Cogema’s (Areva’s) Midwest uranium mine not go ahead because “the benefits that could be obtained are insufficient to balance the potential risks” was simply ignored by the Romano NDP government of the day. (The Board of Inquiry was concerned about the cumulative impacts of mines in the Wollaston Lake area.)
In its “consultations” with the Federation of Saskatchewan Indian Nations (FSIN) and Métis Society, the industry-based, Nuclear Waste Management Organization (NWMO), talks of finding a “willing community” in the north to take nuclear wastes. Yet the NWMO never mentions that after seven years of hearings (1991-1998) a Federal Environmental Review on AECL’s proposed nuclear waste management concluded that “…the concept for deep geological disposal has not been demonstrated to have public support…it does not have the required level of acceptability to be adopted as Canada’s approach for managing nuclear fuel waste”.
When “consultations” with the wider public backfired, the nuclear industry just moved on with the same agenda and “consulted” with economically impoverished Indigenous communities. This manipulative, monetarily-induced “consultation” clearly fails to meet the criteria of Duty to Consult.
Compare this approach with what occurred in British Columbia or Nova Scotia, where environmental health concerns led to long-standing moratoria on uranium mining. Or, in New Brunswick, where such concerns led to banning all uranium exploration that could contaminate community aquifers or rural wells! Or, in the Ottawa valley, where a broad coalition won support for a uranium moratorium from 20 municipalities, including the capital city itself. If we look honestly at what has (or hasn’t) happened here, compared to elsewhere, we find a huge double standard which some are now calling “environmental racism”.
Ontario’s cottagers, farmers, along with Indigenous communities with outstanding land claims, have united against the antiquated policy that allows “free entry” to explore for uranium without owner consent. Cottagers returning to their small lake-side retreats to find trees cut, holes bored and claims stakes have developed more sympathy for Indigenous communities that have faced such arbitrary and destructive actions “in their back yards” for over a century.
Governments and corporations that want to continue the colonial practice of “free entry” are coming up against the international law affirming Duty to Consult. They will try to make it as ritualistic and non-consequential as possible. The rest of us need to work to make it a norm and process that governments respect and uphold. An alliance of Settlers and Indigenous communities committed to such democratization could be very powerful in moving us towards a sustainable society.
Jim Harding is a retired professor of environmental and justice studies who writes a weekly column “Saskatchewan Sustainability” for the R-Town News chain. His web site is: http://jimharding.brinkster.net