Scott Goosenberg, "Drawing a Line in the Sand: A Comparative Case Study of Resource Extraction vis-à-vis Indigenous Group Rights" (Project Outline)

Introduction

• The Beaver Lake Cree Nation’s (hereafter BLCN) society of 900 faces systematic threats against their way of life, by virtue of an economically fueled—and in part governmentally countenanced—onslaught to their way of life. Hailing from the southern tip of the Athabasca tar sands, the BLCN are placed in an impossible position of sustaining their lifestyle in a region possessing the largest deposit of non-conventional oil resources in the world. Economic benefits, juxtaposed with the potentiality of circumventing the necessity of oil procurement from comparatively unfriendly Eastern nations, have drastically minimized attention to the ecologically and socio-economically detrimental extraction methods employed on the Alberta tar sands vis-à-vis the BCLN. A steam assisted gravity drainage (SAGD) process to extract bitumen, as well as strip mining and other methods, create a messy process that, along with impeding the BLCN’s capacity to hunt caribou and other animals, contaminates soil and ground water. Despite their size, this small group is seen by some environmentalists to be “one of the last and best hopes” to stop new tar sands projects. However, if the status quo prevails, there could be global ramifications involving exogenous air and water pollution, the specter of the boreal forest’s evisceration, disruption of the region’s animals, and the exacerbation of carbon emissions roughly three times higher than those of standard oil extraction. 

• This synergized witches’ brew of woes stands on its own pedestal of pressing importance, and with increased publicity, can strongly benefit the campaign for indigenous rights in general. This essay seeks a metaphorical line in the sand through which indigenous groups’ rights can be maintained in the face of resource extraction efforts on their property through a comparative analysis of international case studies that are in part reminiscent of the BLCN’s plight. In order to best complement efforts underway by the BCLN’s legal counsel, led by Jack Woodward, efforts involving the extraction of oil and bituminous non-conventional oils—specifically heavy oil sands and to a lesser degree oil shale—rather than a comprehensive analysis of resource extraction in general. However, insofar as their debacles glean international methods by providing additional recourse for the BCLN, issues of rain forest deforestation and mineral mining will be addressed as well.     

• Myriad international mechanisms and their outcomes will be analyzed in order to discern a viable way forward, by drawing on the wealth of: regional organizations’ efforts to sustain indigenous rights, by entities such as the Organization of American States and the Inter-American Court of Human Rights. An analysis of these bodies’ works, inter alia, will be supplemented by the efforts of supranational bodies within the UN, as well as elements of civil society, whereby a template establishing baseline conditions will be established in an attempt to help ensure a sustainable existence for the BLCN, and others like them. 

• On the Canadian front, the successful and unsuccessful tribulations faced by the Tsilhqot’in and Lubicon peoples respectively will be deconstructed for their import on the BLCN’s current case. The case of the Calyoquot Sound in British Columbia and the advancement of forest practice standards, as it provides as a model of an ethical and cooperative approach between indigenous peoples and external professionals in a resource extraction setting. Internationally, the Ogonis’ trials in the Niger delta with the Nigerian government and foreign investors will be of pressing concern, in concert with the Inuits’ case against the United States, as well as the status of indigenous peoples’ rights within the United States. Moreover, as the second-largest possessor of nonconventional hydrocarbons, the Orinoco Belt of Venezuela will be studied. Finally, African mining will be examined in light of the perception that many practices run contrary to the UN Declaration on the Rights of Indigenous Peoples. 

Thesis Question:

• How can the Beaver Lake Cree Nation’s legal case be buttressed by virtue of drawing parallels from previous national and international cases concerning Indigenous peoples’ rights at risk whilst facing the specter of detrimental resource extraction, with particular emphasis on non-conventional oil reservoirs?  

Case Studies:

The Lubicon, a nation of 500 people who live in northern Alberta, has seen their quality of life deteriorate significantly in the past 30 years as a result of oil and gas extraction that has occurred against their will.

• Civil Society Aid: Amnesty International, KAIROS: Canadian Ecumenical Justice Initiatives, Lubicon Legal Defence Fund, Friends of the Lubicon.

• The World Council of Churches condemned the Canadian government in a 1993 report when they accused Canada of committing a gradual genocide of the Lubicon Cree.

• Outcome: Two UNHRC rulings, in March 1990 and October 2005 respectively, criticized the Canadian government for failing to resume negotiations and consult with the Lubicon elders prior to issuing decrees allowing for the further economic exploitation of their land. Issue still hotly disputed, as the UNHRC ruling has not been followed.

The Ogonis are an indigenous Nigerian group that lives in the Niger Delta, where approximately 60% of the nation’s oil reserves can be found. Shell’s—one of the many oil companies involved as well in the Alberta tar sands projects.

• Outcome:

• Activities in the Delta have wreaked havoc upon the local environment, rendering farming impossible. Any efforts to protest by the Ogonis have led to harassment, conflict, arrests and in certain cases, extrajudicial killings.

• Civil Society Aid: Amnesty International, Greenpeace

• Other International Acts: Withdrawal of Ambassadors from Nigeria, call for oil embargo, E.U. calls for economic and military sanctions

Tsilhqot’in Nation v. British Columbia case

• Outcome: 

• After 339 days of hearings in the span of five years at a cost of almost $30 million, the nation was given 2,000 kilometers of land, but never received a binding opinion or a formal declaration of an aboriginal title.

Venezuela’s Orinoco Belt possesses heavy oil sands that rival only those of the Athabasca region of Alberta. 

• 28 groups indigenous to Venezuela comprise 2% of the country’s 26 million population. While the indigenous groups have expressed support of President Hugo Chavez’s efforts, but there have been protests with respect to the detriment of their environment, way of life and therefore constitutional rights via coal mining. 

• Their rights vary, dependent upon the political tides of the time, but in comparison to the BLCN, “Generally there is a positive relationship between indigenous groups and the government.”

Substantive Analysis

• Establish foundation of domestic legal legislation, including how the outcomes of the Lubicon and Tsilhqot’in peoples as well as other tribes affected by tar sands drilling, and discern the pros and cons of the approaches they took to publicize their plight.

• Research international cases with specific emphasis on, but not limited to, the Oganis of the Niger Delta, groups in the oil-rich south Sudan, as well as indigenous Venezuelan groups whose environments have been negatively impacted. Additionally, relevant statutes and international precedents will be sought that correlate with the BLCN’s circumstance. 

Documents of particular concern:

• Submission of the International Union for Conservation of Nature (IUCN) to the 9th Session of the UNPFII: Indigenous Peoples in the IUCN Programme

• THE HIDDEN DIMENSION: WATER AND THE OIL SANDS, Liberal Report from the Study of the Standing Committee on Environment and Sustainable Development on the Impact of Oil Sands Development on Canada’s Freshwater  

• Transnational Governmentality and Resource Extraction: Indigenous Peoples, Multinational Corporations, Multilateral Institutions and the State, By Suzana Sawyer and Edmund Terence Gomez 

• The Protection of Indigenous Peoples’ Rights over Lands and Natural Resources Under the Inter-American Human Rights System, Harvard Human Rights Journal.

• Indigenous Peoples, Resource Extraction and Sustainable Development: An Ethical Approach, Business Ethics.

• Toward A CAMPAIGN in Support of THE UN DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES, August 2, 2007, THE INTERNATIONAL FORUM ON GLOBALIZATION 

• The Catch-22 of Conservation: Indigenous Peoples, Biologists, and Cultural Change, Human Ecology, By Flora Lu Holt

In doing so, lay the foundation for an international course case, and seek to build upon the works of many NGOs and advocates have already done to help further publicize the BLCN’s plight, towards the ultimate end of lodging a formal complaint with the Canadian government and the U.N. The ultimate endgame will work towards the strategic end of bringing attention to the dangers of the tar-sand extraction in general, and its impact on the BLCN in particular. 

Conclusion (in abbreviated form below, and still tentative)

• Climate change and human rights advocates have helped bring attention and economic support vis-à-vis the BLCN’s plight; the Alberta tar sands were of import in the run-up to the Copenhagen Climate Summit. Their legal battle shows serious promise—thanks to endogenous resolve and exogenous material support from a global base. However, aside from the monetary issues attached to the legal issue itself, the BCLN face a series of political, economic and trade issues with an international dimension. Most prominently, Canadian government officials, international oil companies, and more recently the E.U. as well as U.S. Republicans seeking North American fuel over alternatives has created a veritable fount of opposition that only compounds the troubles of a small nation fighting ever-growing waves of resistance.

Comments

[Sam]

If you're looking for a local semi-expert on indigenous peoples' rights amid resource extraction, you might reach out to a recent grad of the UBC journalism school, Dawn Paley, who still lives in Vancouver and who has made precisely this area her domain of expertise.

http://dawnpaley.wordpress.com/

[Josh]

Hi Scott,

The federal extractive sector bill defeated earlier this week was C-300.

This article provides a useful summary of its contents and the corporate social responsibility of Canadian extractive companies.

http://www.theglobeandmail.com/report-on-business/industry-news/energy-and-resources/defeat-of-responsible-mining-bill-is-missed-opportunity/article1784168/

[Matt Robinson]

This week's Cabinet decision to bar the Prosperity mine project from proceeding might be of interest to you, and it's certainly of relevance...

At the same time, the Conservatives expressed support for the Mt. Milligan mine. The mine is currently the subject of a judicial review - the Nak'azdli are claiming they have not been adequately consulted... It's a case that doesn't get much play in the media, but you might want to take a look at it.

[Hannah van Voorthuysen]

This might be of interest to you http://www.theglobeandmail.com/report-on-business/industry-news/marketing/adhocracy/oil-sands-companies-look-to-clean-up-their-image/article1795758/

[Scott Goosenberg]

Thank for you the suggestions. I will definitely seek to integrate them into my project.

[Gihan]

Hi Scott,
Thought I will play the Devil’s Advocate here..One of the interesting arguments that I read recently in favour of the oil sands projects was if Canada becomes oil dependent on foreign nations how that can be equally detrimental towards human rights. The crux of the argument is of course that Canada will be importing oil from Saudi Arabia, Nigeria, Venezuela etc. where human rights record is not good by any measure and where oil sales are keeping these regimes in power. Of course this would not have a bearing on the rights of indigenous people affected but I found it interesting that a human rights argument was brought in favour of continuing the oil sands extracts.