Category Archives: Environment

The Matter of “free, prior and informed consent”

 

Shawn McCarthy’s column of 16 September first-nation-sets-pipeline-precedent12-9-16-gm discussed the question of what “consent” means to First Nations’ communities through which proposed pipelines run through. In Alberta, the New Democrat government agreed to be bound by the United Nations Declaration on the Rights of Indigenous Peoples. The federal government also  agreed to be so bound after taking office from the Conservative government last October. The federal government has not yet officially agreed to the Declaration.

In McCarthy’s view the recent decision by the U.S. federal government to stop development of the $3.7 billion oil pipeline through sacred territory of the Standing Rock Sioux reservation signals a growing sense of community and co-operation between First Nations opposing pipeline development. For pipeline developers the specter of litigating “free, prior and informed consent” consistent with the U.N. declaration must be daunting. What some observers of the Kinder-Morgan TransMountain project thought would be a fairly easy process, given the pre-existing pipeline and right of way, now looks challenging.

So what does the Declaration say? Firstly, the rehearsals in the preamble will keep lawyers and judges busy for the next century.  As drafted, the document is a consensus document whose preamble attempts to address a wide range of sensibilities through “acknowledging,” “recognizing,” “confirming,”  “affirming,” “encouraging,” and “bearing in mind” certain principles and historical events (in the most general terms). Article 1 seems bizarrely to affirm that indigenous peoples are persons and enjoy all the rights and fundamental freedoms  under the U.N. charter. Article 2 declares indigenous peoples “are free and equal to all other peoples.”

More controversially to nation states is Article 3 that states “Indigenous peoples have the right to self-determination: while article four states: indigenous peoples “have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.”  The latter point has also been a bone of contention as resource development in most developed and undeveloped states has meant royalties to regional or national governments but not to First Nations.

Adding another wrinkle is article 6 -“Every indigenous individual has the right to a nationality.”  This statement along with articles three and four would appear to strengthen First Nations’ claims  to self-government in courts of national jurisdiction.

Article 8,  section 1 provides that Indigenous peoples are not to be forced to assimilate  or see their culture destroyed. Subsequent articles recognize indigenous groups ability to establish and operate their own educational systems, preserve their languages, culture and media.

Article 19 reads in full:  “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.” While not speaking directly to resource development, this provision along with articles declaring rights to  improve . “their economic and social conditions, ” while states shall take measures to 
“ensure continuing improvement of their economic and social conditions. “

Articles 26 through 32 address questions of indigenous peoples’ rights to their lands and to development on these lands.

Article 26
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Article 27
States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands,
territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

Article 28
1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without
their free, prior and informed consent.

Article 32
1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

The acceptance of the U.N. declaration by the Alberta and federal governments constitutes a vast legal obligation to recognize, respect, consult, finance, and in effect undo many of the structures that have governed the relationship between the Canadian state and First Nations over the past 150 years. For those working in the fossil fuel industry, the obligations now assumed by Ottawa and Edmonton will (1) be adjudicated for years, if not decades or (2) settled constructively, respectfully, and with a view to the long term sustainability of both indigenous and non-indigenous communities.

Cartoon Edmonton Journal13-5-17 EJ

Indigenous pipeline opponents take fight to banks that finance project expansions10-5-17 GM

oilsands-wont-hit-2036-emissions-cap-study-says11-2-17-ej

biologist-questions-oil-spill-data3-2-17-ej

judge-orders-end-of-pipeline-blockade26-1-17-ej

ottawa-pushes-for-status-as-u-s-oil-ally24-1-17-gm

canadian-shouldnt-pay-for-b-c-s-bad-behaviour21-1-17-gm

tough-talk-during-inaugural-sparks-concerns-in-the-oilpatch21-1-17-ej

america-first-energy-policy-aims-to-boost-u-s-oil-output23-1-17-gm

oil-patch-faces-threat-from-u-s-border-tax18-1-17-gm

oilfield-pipeline-ripped-from-ground-near-beaverlodge17-1-16-ej

first-nations-sue-transcanada-to-refine-consultation-process10-1-17-gman-alberta-sized-hole-in-trudeaus-credibility14-1-17-ejThe Inside Story of Kinder Morgan’s Approval14-1-17 EJ

alberta-party-leaders-cool-to-pms-phase-out-comment14-1-17-ej

is-canada-setting-itself-up-for-a-pipeline-glut13-1-17-gm

partial-upgrading-of-oilsands-could-be-worth-billions6-1-17-ej

u-s-to-be-net-energy-exporter-by-2026-report6-1-17-ej

anxiety-builds-over-diverging-energy-paths5-1-17-ej

will-2017-be-the-year-of-keystone-xls-revival31-12-16-gm

trump-policies-could-give-u-s-shale-competitive-edge27-12-16-gm

canada-well-on-its-way-to-all-renewables-future24-12-16-gm

economic-optimism-rises-after-trudeau-approves-pipelines20-12-16-gmcarbon-tax-defies-doomsayers7-1-17-gm

environmentalists-file-suit-over-expansion22-12-16-gm

koch-blames-albertas-green-policies-for-oil-sands-cancellation20-12-16-gm

carbon-tax-could-compromise-canadian-food-sovereignty19-12-16-gm

we-are-a-first-nation-community-and-we-support-truedaus-pipeline-decision17-12-16-gm

small-community-tries-big-solar-panel-project19-12-16-ej

trumps-tillerson-pick-is-an-unexpected-godsend16-12-16-gm

panel-calls-for-companies-to-disclose-climate-change-risk15-12-16-gm

A pipeline compromise Alberta can agree with 2-12-16 EJ

climate-disclosure-creates-a-better-environment-for-investors14-12-16-gm

with-trumps-blessing-likely-kxl-revival-near13-12-16-ej

pm-reaches-deal-on-national-climate-plan10-12-16-gm

politicians-should-be-pipeline-rule-makers-not-referees9-12-16-gm

approval-of-lng-project-raise-oil-pipeline-hopes29-9-16-ejmayes-cartoonshared-accommodation-is-common-in-this-industry29-9-16-ejpolitical-pressure-rushed-pipeline-ok-first-nation29-9-16-ej

court-rejects-claim-band-not-consulted13-9-16-ej

eprovince-adds-4-5m-for-new-ad-campign8-12-16-ej

evidence-not-politics-urged-for-pipelines8-12-16-ej

a-rallying-cry-for-the-moderates7-12-16-gm

pipeline-protests-wont-change-decision-to-proceed-notley-says7-12-16-gm

notley-treads-lightly-in-selling-pipeline-in-b-c-6-12-16-gm

province-will-buy-renewable-energy-through-auction4-11-16-ej

alberta-bill-would-cap-greenhouse-gas-emissions2-11-16-gm

alberta-hoping-cap-on-emissions-at-oilsands-will-spur-pipeline-nod2-11-16-ej

agency-preparing-programs-to-cut-use-of-energy28-10-16-ej

province-spends-10m-to-help-farmers-reduce-carbon-impact25-10-16-ej

albertas-older-biofuels-policies-belong-in-the-history-books31-10-16-ej

tougher-rules-spur-voluntary-reclamation-of-old-well-sites31-10-16-ej

industry-pushed-to-reduce-impact-on-environment31-10-16-gm

ndp-plays-down-carbon-tax-pain1-11-16-ej

we-must-clear-the-air-on-coal-fired-electricity29-10-16-gm

province-unveils-9m-program-to-fund-solar-panel-for-schools27-10-16-ej

pipeline-bottleneck-looms-with-growth21-10-16-ej

notley-calls-for-province-to-raise-the-volume-to-sell-climate-plan8-10-16-gm

ripple-effects-from-oil-tanker-restriction-would-be-felt-nationwide5-10-16-ej

alberta-plans-shift-to-solar-power7-10-16-ej

b-c-s-lng-approval-gives-much-needed-oilpatch-optimism1-10-16-gm

elite-centralized-decision-making-is-a-thing-of-the-past7-10-16-ej

forecasts-see-oilpatch-lifting-off-the-bottom5-10-16-ej

ndp-mulls-carbon-tx-rebates5-10-16-ejoilsands-enemies-dont-get-it-chief4-10-16-ejripple-effects-from-oil-tanker-restriction-would-be-felt-nationwide5-10-16-ej

first-nations-divided-on-energy-front24-9-16-gm

energy-infrastructure-remains-sensitive-issue27-9-16-ej

meech-lake-has-echoes-in-energy-east23-9-16-ej

first-nations-ramp-up-pipeline-opposition23-9-16-gm

native-groups-join-force-to-fight-big-oil23-9-16-ej

alberta-first-nation-renews-pipeline-suit20-9-16-ej

notley-downplays-federal-carbon-levy20-9-16-ej

northern-gateway-hits-uncharted-territory21-9-16-ejclimate-risk-taking-larger-focus-in-assessing-credit21-9-16-gm

study-reveals-air-quality-issues-at-fort-mckay22-9-16-ejcitys-greenhouse-gas-strategy-is-full-of-hot-air22-9-16-ejndp-sounds-climate-alarm21-9-16-ejthe-price-of-going-green16-9-16-ej

shift-away-from-coal-may-cost-alberta-billions16-9-16-ej

30-renewables-by-2030-ndp15-9-16-ej

uncertainty-hangs-over-energy-east-following-review-panel-resignations13-9-16-ej

court-rejects-first-nations-claim-that-rights-were-violated-in-neb-review13-9-16-gm

energy-east-pipelines-many-travails-all-point-to-harper13-9-16-ej

pipeline-delays-pose-threat-to-firms-credit-ratings13-9-16-gm

Environment

Oilsands firms face stringent emissions caps16-6-17 GMUpdate

Since the last post a great deal has happened in the provincial government’s approach to climate. The recognition that climate change is a serious financial and economic matter, not just “political” was provided by Bank of Canada Deputy Governor Timothy Lane in a speech a couple weeks ago in Montreal.  Lane noted

climate change itself and actions to address it will have material and pervasive effects on Canada’s economy and financial system. While many of these will play out over many decades, I will argue that they are already starting to become important. So, the Bank needs to consider these effects as we deliver on our mandate to promote the economic and financial well-being of Canadians.

The Deputy Governor placed considerable emphasis on getting the price of carbon right.  Key to supporting Canada’s response to climate change is to find the right incentives to:

  • encouraging the use of existing technologies to reduce carbon emissions,
  • inspiring the development of new technologies, and
  • helping shift consumption and investment toward those goods and services that require less carbon to produce.

In support of these incentives is the importance of greater transparency meaning better disclosure of a companies’ future economic prospects in an era of reduced carbon emissions and production.  This is especially important for oil reserves that might become uneconomic (i.e. Exxon-Mobil’s massive write-off of its Kearl Lake oilsands asset).

Other articles found below point to a recognition amongst institutional investors, like AIMCo, that renewable energy sources are becoming economic and will challenge carbon-based electricity production. Other articles report the NDP’s plan to “distribute freebies” in the form of energy efficient LED lights and energy efficiency measures. There is also more evidence that Alberta’s Energy Regulator is getting tougher on industry “laggards.”

U.S. group seeks carbon tax, dividend plan21-6-17 GM

Carbon taxes, fees divide oilpatch association21-6-17 EJ

Financing the clean transition is Canada’s G7 opportunity to lead21-6-17 GM

Alberta could impose carbon reductions on oil sands17-6-17 GM

Companies can no longer hide their climate risk13-6-17 GM

Construction innovation is key to clean growth14-6-17 EJ

Oil majors embracing renewable projects-report13-6-17 EJ

NEB plans new rules for pipeline parts13-6-17 GM

Premier pledges to stick with climate change plan2-6-17 EJ

$235M loan issued to help with orphan well cleanup19-5-17 EJ

Alberta pledges $235 million to ‘orphan’ oil wells cleanup19-5-17 GM

Carbon plan on shaky ground with shifting priorities in West19-5-17 EJ

Is Canada’s carbon-pricing policy striking the right balance19-5-17 GM

ATCO accelerates Alberta plans to phase out coal by 202011-5-17 EJ

The battle against climate change- and hypocrisy5-5-17 EJ

CAPP rejects findings in methane-emissions report27-4-17 GM

Is Trudeau a hypocrite25-4-17 GM

Researchers tout new method to measure emissions25-4-17 GM

Natural gas used in oilsands to make crude called wasteful20-4-17 GM

New Suncor report signals shifting climate19-4-17 GM

Carbon tax requires trust in government11-4-17 EJ

Emissions heavy sectors raise concerns about carbon taxes’ effects on growth13-4-17 GM

Energy watchdog looks to cut number of spills1-4-17 EJ

Regulator won’t rubber stamp tailings pond cleanup plans31-3-17 EJ

Canada’s oilsands weigh next moves on climate29-3-17 EJ

Trump’s bid to reverse climate agenda puts pressure on Ottawa29-3-17 GM

Ottawa grants Alberta $30M to clean up wells23-3-17 EJ

Athabasca River contamination isn’t ‘over-stated’23-3-17 EJ

Oil spill near Enbridge site under investigation22-3-17

How carbon pricing will drive us to save18-3-17 GM

Potential profits seen in carbon capture technology14-3-17 EJ

Alberta has a key stake in British Columbia’s political intrique8-3-17 GM

cartoon-edmonton-journal3-3-17-ej

boc-issues-climate-change-warning3-3-17-gmcartoon-edmonton-journal3-3-17-ej

why-the-oil-patch-may-feel-pain-from-shippings-dirty-little-secret3-3-17-gm

energy-efficient-freebies-offered-to-homeowners1-3-17-ej

environmentalists-should-end-the-charade-over-the-oil-sands1-3-17-gm

canada-should-stick-to-its-own-path-in-clean-tech1-3-17-gm

murphy-oil-fined-172500-for-spill-near-peace-river1-3-17-ej

province-unveils-36-million-plan-for-home-and-business-solar-rebates28-2-17-ej

smart-climate-policy-is-crucial-to-albertas-prosperity25-2-17-gm

aimco-invests-in-renewables25-2-17-ej

energy-regulator-releases-rules-on-heavy-oil-odours24-2-17-ej

oil-companies-call-for-context-on-regulators-new-website23-2-17-ej

regulator-posts-pipeline-safety-records-online22-2-17-ej

alberta-regulator-shuts-down-all-lexin-resources-operations17-2-17-ej

tsb-calls-on-ottawa-to-tighten-rules-for-oil-trains17-2-17-gm

ndp-rolls-out-freebies-to-launch-energy-efficiency-programs18-1-17-ej

groups-want-renewable-energy-targets-legislated25-10-16-ej

woman-cant-sue-alberta-regulator-in-fracking-case14-1-17-gmedmonton-easing-rules-for-addition-of-solar-panels14-1-17-ej

woman-cant-sue-alberta-regulator-in-fracking-case-supreme-court14-1-17-ej

canada-must-not-give-up-the-fight2-1-17-gm

three-post-truths-about-global-energy-and-climate-change2-1-17-gm

wildrose-assails-ndp-over-ads-for-climate-plan13-12-16-ej

province-spends-10m-to-help-farmers-reduce-carbon-impact25-10-16-ej

pipeline-leaked-250000-litres26-10-16-ej

power-transition-could-end-up-very-expensive26-10-16-ej

shift-from-coal-power-wont-be-cheap-for-alberta26-10-16-gm

building-code-requirements-for-energy-efficiency25-10-16-ej

climate-question-is-the-litmus-test-of-real-leadership24-10-16-ej

province-will-chip-in-extra-33-m-to-help-reduce-emissions-of-methane22-10-16-ej

apache-admits-guilt-in-multiple-spills5-10-16-ej

carbon-levy-unlikely-to-stifle-investment-uofa-professor6-10-16-ej

notley-cool-to-carbon-plan4-10-16-ej

trudeau-tells-provinces-to-adopt-price-on-carbon-or-hell-impose-it4-10-16-gm

carbon-plan-beneficial-for-alberta-analyst-says4-10-16-ej

ndp-mulls-carbon-tax-rebates5-10-16-ej

Bill 20 was the provincial government’s signature bill on climate change. The provincial government last fall was able to stage manage a remarkable accommodation between oil company executives and leaders of the environmental movement. (Ed Whittingham, Executive Director of the Pembina Institute spoke at the NDP convention on 11 June 2016.) Alberta’s economy is heavily carbon intensive and there is considerable fear in the business community and in senior government circles that precipitous declines in greenhouse gas emissions will bring the Alberta economy to its knees causing widespread dislocation and unacceptable levels of unemployment and disinvestment.

A key debate will be federal intentions to establish a minimum carbon tax. Further debate and discussion will surround how effectively the gasoline tax and the tax on heating fuels will lower consumption, and hence, GHG levels.

environmental-groups-pan-emissions-limits-on-b-c-lng-project29-9-16-ej

Mystery is hanging over Alberta’s new carbon tax16-4-16 EJ

How not to institute a carbon price18-6-16 GM

Unilateral carbon tax may violate the constitution, Wall says during speech15-6-16 EJ

NDP’s climate ads to top $5M21-6-16 EJ

New rules put oil deals in doubt23-6-16 GM

RBC backs adoption of carbon price23-6-16 GM

Northern Gateway timeline review suspended by NEB9-7-16 EJ

Province vows to look into pollution levels in in-situ oilsands industry30-8-16 EJ

Federal governnment could join Alberta’s coal phase-out3-9-16 EJ

Premier should rethink support Letters to Editor 30=8-16 EJ

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