Forrest Barnum: Beaver Lake Cree -- environmental rights (paper proposal)

Research Question: Can international law be used to entrench a broader conception of environmental rights in Canada?

Background: First Nations tribes in Canada have asserted their rights to a clean environment and cultural continuity almost continuously since confederation. Recent efforts have largely been decided in the courts, with several tribes choosing to sue various governments over consultation, development issues, and treaty obligations. There have been concerted efforts to bring international public opinion to bear on this issue: in 2005, Shelia Watt-Cloutier petitioned the Inter-American Commission on Human Rights demanding redress for the environmental damage caused by greenhouse gasses emanating from the United States; more recently, the Lubicon Cree’s grievances against the tar sands were profiled by Amnesty International.

The Beaver Lake Cree, the specific tribe this project is concerned with, filed suit against the Government of Canada on May 14, 2008, alleging their tribal rights guaranteed under Treaty No. 6 were being violated by Tar Sand extraction and processing. Specifically, the vitiated rights include a number of game and range use guarantees the Cree were granted in exchange for giving up property rights.  A similar case, Tsilhqot’in First Nation v. British Columbia, returned a result favourable to the plaintiff in 2007. Essentially, “The Tsilhqot'in Nation was declared to have hunting and trapping rights, the right to capture wild horses, and the right to trade skins and pelts as required to secure a moderate livelihood; those rights were declared to have been unjustifiably infringed by the provincial forestry and land use planning regimes.”

Given these favorable precedents, my group is going to examine how international law usefully be brought to bear on this case. For my individual project, I will be examining environmental rights, which likely will apply in this context. I will, through academic research and direct interviews, ascertain the extent of the environmental damage suffered by the Cree. This evidence will then be used to invoke relevant international statutes and legal precedent contained in IJC decisions, treaties, U.N. resolutions, and any other legal instruments. The end product will be a brief or other item that will allow the Cree and other tribes to usefully apply international law to their plight and obtain a successful outcome.

 

Comments

[Hannah van Voorthuysen]

Hey Forrest,

I don't know how relevant this is, but just for comparison, I emailed a friend to ask about the impact of international environmental law in NZ especially in those cases where the Treaty of Waitangi was evoked (the treaty signed between the Crown and some Maori tribes). Here's his response:

Hi Hannah

No, in NZ the courts have decided that international treaties (such as the Rio Declaration for example) and international law have no relevance to domestic environmental management unless those principles are incorporated into domestic (NZ) statutes. So even international law governing things like marine dumping (such as the London Convention on marine dumping) and oil spills had no relevance until the Resource Management Act was amended to incorporate those international regulations.

Sometimes lawyers will use case law principles from Australia or Canada or England to bolster their arguments in front of a Court, but at the end of the day that is only useful if the NZ domestic law is unclear on a particular point.

[Hannah van Voorthuysen]

And another response!

"NZ’s Climate Change Response Act was amended in 2008 to implement an emissions trading scheme. The legislation is the means by which NZ will comply with the Kyoto Protocol, which it signed in May 1998. None of that is relevant to the application international law and the Treaty of Waitangi in environmental cases.

The orthodox constitutional position of Parliament as the sovereign and supreme law-making body is that an international treaty has no legal effect in the legal system of a signatory nation, except to the extent that the treaty is incorporated into the domestic law of that country. That approach also applies in relation to the Treaty of Waitangi: Te Heuheu Tukino v Aotea District Maori Land Board [1941] NZLR 590; [1941] AC 308 (PC); NZ Maori Council v A-G [1987] 1 NZLR 641; (1987) 6 NZAR 353 (CA) (Lands case). Therefore, the Courts cannot enforce Treaty rights “except in so far as they have been given recognition by statute”: NZ Maori Council v A-G [1992] 2 NZLR 576 (CA) (Broadcasting Assets case).

Despite the orthodox approach, there have been cases where the Treaty of Waitangi, though not incorporated into the relevant statute, has nevertheless been drawn on as an aid to interpretation, on the ground that the Treaty is “part of the fabric of New Zealand society”: Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188 (HC) (a case determined under the Water and Soil Conservation Act 1967); and “must colour all matters to which it has relevance”: Barton-Prescott v Director-General of Social Welfare [1997] 3 NZLR 179 (HC) (decided under the Guardianship Act 1968). That approach was modified in Glenharrow Holdings Ltd v A-G [2003] 1 NZLR 236 (HC) (per Chisholm J), a case under the Mining Act 1971 (which had no “Treaty clause”), where the tension was between the policy of the Mining Act 1971 to promote mining, and the protection accorded to taonga such as pounamu by the Treaty of Waitangi. The High Court held that the policy of the Act must prevail (a holding not disputed by the Court of Appeal in Glenharrow Holdings Ltd v A-G [2003] 2 NZLR 328; [2003] NZRMA 394 (CA)).

In the RMA’s early days, the Court sometimes looked to case law from other jurisdictions to assist in the interpretation or application of particular sections of the RMA – the Canadian case of Bata Industries was used to develop sentencing principles for offences under the RMA (for example), but now does that less frequently as case law has developed."

...Again, I don't know how useful this will be to you, but it is interesting to note how other countries with indigenous populations supposedly protected by existing treaties with the Crown have incorporated (or haven't incorporated) international law.