Forest Peoples Programme Supporting forest peoples’ rights

Guest article from the Nishnawbe Aski Nation of Canada - "Expropriation of Indigenous Lands for Government Designated Protected Areas in Northern Ontario, Canada"

8 July, 2011

Canada’s Auditor General commented in her June 2011 report that living conditions in First Nations reserves are still much worse than elsewhere in Canada. Reflecting on her ten years in office, she argued that a fundamental change is needed to address this issue. In 2010, Canada finally endorsed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) after being one of four governments to vote against it during its passage through the General Assembly in 2007.

All the countries in which FPP has partners have endorsed the UNDRIP (and often many other relevant conventions) yet many of them fail to implement these commitments effectively. In this guest article, the Nishnawbe Aski Nation (NAN) living in the far north of Canada report on how they still struggle to gain respect for their right to self-determination and to give or withhold their free, prior and informed consent to measures that may affect them. The designation of new protected areas in Northern Ontario addressed in this article also raises questions concerning the extent to which Canada is implementing its obligations under the UN Convention on Biological Diversity, which calls for the full and effective participation of indigenous and local communities, in full respect of their rights and recognition of their responsibilities, in the management of existing, and the establishment and management of new, protected areas. Respect for the rights of indigenous peoples, as articulated in UNDRIP, can be the basis for ending the marginalization and impoverishment of indigenous communities.

The Guest Article from NAN follows here:

*GUEST ARTICLE: Expropriation of Indigenous Lands for Government Designated Protected Areas in Northern Ontario, Canada*

By Carol Audet, Nishnawbe Aski Nation (NAN)

In October 2010, an Act with respect to land use planning and protection in the Far North was passed in Ontario, Canada by the provincial government (also referred to as the “Far North Act”). This Act directly targets the Cree, Ojibwe, Oji-Cree and Algonquin Indigenous peoples of the Nishnawbe Aski Nation (NAN) who have been the sole occupants of this mostly under-developed far north part of Canada for millennia (see background information). NAN communities are part of James Bay Treaty No. 9 and Treaty No. 5 of the treaties made in Canada, which affirm the rights of Indigenous peoples in an international context. The Act was passed without Indigenous peoples’ free, prior and informed consent (FPIC). It imposes an interconnected protected area of at least 225,000 square kilometres, expropriating the land of Indigenous people in NAN without compensation, and giving the provincial government the power to override Indigenous peoples’ land use decisions. The protected area will also have far-reaching consequences for the lives and human rights of the Indigenous people in NAN including their ability to freely pursue economic, social and cultural development in accordance with their right of self-determination. The Act came as a result of a unilateral provincial government announcement in July 2008. It appeared to be the product of secret discussions between the government and certain conservation organizations fixated on protection of the boreal forest in northern Canada, which was identified by Global Forest Watch Canada as the last of the world’s remaining intact forest landscapes.

The Far North Act

The government alleged that the protected area component of the act was motivated in part by concern around climate change and green house gases. Sections 5(.3) and 7(7)(.2) of the Act mention, respectively, the "storage and sequestration of carbon in the Far North" and "considerations for cumulative effects for climate change adaptation and mitigation.” The government described the far north part of NAN First Nations’ traditional territory as a “carbon sink.” However, it excludes Indigenous peoples from any meaningful involvement in policy discussion on carbon storage and carbon credits, even though a vast swath of Indigenous territory is being confiscated for this policy.

The Act establishes a land use planning system that is open to Indigenous peoples’ participation. However, the core elements of every land use plan (LUP) are subject to government veto, in complete denial of the FPIC standard. The land use planning process is required to generate the interconnected protected area commonly referred to as a “super-park.” On average, Indigenous peoples will have to “agree” to give up half of their traditional territory for the boreal forest super-park. The Act immediately freezes most forms of modern development, that is, until LUPs are agreed to. There are some exceptions for limited permitted uses, including mining exploration (s. 12 (5)(e)). By the stroke of a pen, Indigenous peoples are not permitted to engage in most forms of modern economic development throughout their homelands. Despite their domestic and international rights, Indigenous peoples in NAN will not be able to make their own self-defined choices for balanced development and conservation. The only way Indigenous peoples can re-acquire development opportunities is to agree to LUPs. These are the LUPs controlled by the government, by which each First Nation must “agree” to an allocation for the super-park.  All of this amounts to black-mail on a scale that might make a nineteenth century imperialist blush.

If an Indigenous community stands on principle and resists the blackmail of the immediate development freeze (sec. 12), it does not really matter. The game has been completely rigged by the government. Where, for whatever reason, an Indigenous community does not agree to a LUP, its entire traditional territory will remain more or less frozen. In addition, even without a LUP, the government can unilaterally establish “provisional” protected areas (sec. 13(1)). Further, the government can establish protected areas under the provincial Public Lands Act (sec. 25 of the Far North Act), without any input from Indigenous peoples. It is likely that the government and conservation organizations will use some of these draconian powers if there is a delay in the LUP process that they consider unacceptable.

Even though land use planning is an essential matter for the Indigenous peoples in NAN, the government is not guaranteeing meaningful levels of capacity funding to undertake plans. Indigenous communities must also comply with the LUP model of the government, notably including the super-park element, in order to receive funding. The entire LUP process can be subverted at any time if the government decides to authorize a development it deems to be in the social and economic interests of the Province of Ontario (sec. 14(4)). There is no such exception for Indigenous peoples in NAN.

The role of conservation organisations

Over the 3 years of strenuous objections of NAN, conservation organizations appeared sympathetic. However, at a crucial time in the legislative process, they became instrumental in supporting its enactment. Indigenous peoples in NAN were appalled at these actions as they were contrary to policy statements developed by conservation groups recognizing the rights of Indigenous peoples to FPIC. In the case of NAN and the World Wildlife Fund of Canada (WWFC), one of the nine (9) conservation organizations that supported the Act,[1] NAN pointed to the WWF Statement of Principles on Conservation and Indigenous Peoples and the Conservation and Human Rights Framework, both signed by WWFC.

NAN accused WWFC of violating their statement of principles on Indigenous peoples’ rights and issued an open briefing note calling for an investigation. NAN brought attention to the fact that the actions of WWFC undermined the legitimate aspirations of Indigenous peoples. NAN also made it known that they expected WWFC to honour its written policies and not push them aside when convenient. The call for an investigation was unheeded.

Another example of activities of conservation organizations that led to state (government) actions and the development of further protected areas is the May 21, 2010 signing of the Canadian Boreal Forest Agreement (CBFA). Even though it directly impacts Indigenous peoples’ rights and territories, including forests, this Agreement between forest industry groups in Canada and conservation organizations, was negotiated in secret. An open letter to the CBFA signatories calling for the termination of this Agreement on a voluntary and unconditional basis was forwarded by NAN as directed by NAN communities. Rather than respect the rights of Indigenous peoples, including the right to FPIC, the signatories to the CBFA defended their actions and continued to move to implement the Agreement.

A number of the conservation groups that have signed on to the CBFA are not registered in Canada as non-profit charitable organizations, but are based in the United States (US). Indigenous peoples have questioned why they have so much influence in Canadian natural resource policy. Some are also heavily financed through grants from US foundations, while Indigenous peoples without access to such largesse, have had difficulty responding to the conservation organizations’ well funded campaign to market the CBFA in Canada. While positive steps have been taken to bring investment policies in-line with the standard of FPIC, such as those announced by the International Finance Corporation on May 12, 2011, the yardstick needs to move further to include funding provided by foundations to conservation organizations. Moreover, it must be recognized that investments are being placed in the wrong hands. In Alliance magazine’s June 2011 edition, Rebecca Adamson, in her article 'Learning to see 'invisible' capacity' discusses the need for donors to adapt their paradigms to the worldviews of Indigenous peoples.

The role of government

In March 2011, the government of Canada issued its “Updated Guidelines for Federal Officials to Fulfill the Duty to Consult.” These guidelines fail to consider the right of Indigenous peoples to FPIC, except to indicate Canada’s concern when such consent is “interpreted as a veto.” One of the last three countries to sign, Canada finally endorsed the United Nations Declaration on the Rights of Indigenous Peoples in November 2010. At the time, they indicated that the Declaration was a “non-legally binding document that does not change Canadian laws.” In May 2011, at the United Nations Commission for Sustainable Development (UNCSD) 19 Working Groups 1 and 2, Canada, Australia, New Zealand and the US petitioned for the deletion of FPIC language in the work they were developing.œ

With policy directions such as these, it is no wonder that both the Far North Act and the CBFA are seen as acceptable by Canadian governments and the right to Indigenous peoples’ FPIC is ignored. State and third-party interest groups have lost their moral compass and have run roughshod over Indigenous peoples’ rights in NAN. Indigenous peoples will have a lot of work to do in their continuing struggle to protect their inheritance for current and future generations. More than enough land has been expropriated.

For further information: www.nan.on.ca

[1] The nine conservation organizations that supported the Far North Act in some form included: World Wildlife Fund of Canada, CPAWS Wildlands League, Ecojustice, Environmental Defence, Environment North, Forest Ethics, Ontario Nature, Canadian Boreal Initiative/Ducks Unlimited Canada and the David Suzuki Foundation.

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We thank the author(s) for contributing this article to the FPP E-Newsletter. The views expressed in this article may not necessarily reflect the views of Forest Peoples Programme.

FIRST PUBLISHED IN THE ENEWSLETTER