Why a UN committee’s new Site C deadline shouldn’t be ignored

A United Nations committee is making it difficult for the federal and provincial governments to hide behind a court decision allowing continued construction of the Site C dam.

In a letter issued Dec. 14, the UN Committee on the Elimination of Racial Discrimination (CERD) elevated its earlier call to suspend construction of the multibillion dollar public dam project, this time highlighting the urgency of preventing permanent harm to the land rights of Indigenous peoples in the Peace River region.

Now Canada — and thus both the federal government and the government of British Columbia — has until April 2019 to provide the committee with indication of the measures they’ve taken to suspend the project.

The committee’s call for action came two months after the B.C. Supreme Court denied a First Nations request to either temporarily halt construction of the project or protect critical areas of the Peace Valley until ongoing treaty rights issues are resolved. This decision marked a victory for the provincial government and BC Hydro, which fought the injunction, but it left the ultimate fate of the project undecided while the underlying treaty rights challenge continues.

But the UN CERD, an independent expert body responsible for reviewing member states’ adherence to the International Convention on the Elimination of All Forms of Racial Discrimination, is hardly convinced by claims that these underlying — and critical — Indigenous rights concerns can continue to be ignored for another day.

Following Canada’s review before the UN CERD in 2017, the anti-racism body concluded the Site C dam flooding could cause “irreversible damage” to the rights of Indigenous peoples in the Peace Valley, wiping out plants, medicines, wildlife, sacred lands and gravesites.

Such harms could destroy the cultural practices, traditions and way of life for the people of West Moberly and Prophet River First Nations, which applied for the injunction and are still pursuing outstanding civil actions against the project.

In its initial report, the UN CERD gave Canada a year to follow up on the recommendations. A year and a half later, there has still been no response from the federal and provincial governments.

Now Prime Minister Justin Trudeau and Premier John Horgan face this new request from the UN Committee, issued under a procedure meant to prevent serious violations of this core international human rights convention.

Unlike Canadian courts, UN human rights bodies don`t have the power to shut down a project like Site C. But they do have considerable moral authority — moral authority that Canada regularly expects other governments around the world to heed.

And in fact, although the injunction decision allows construction to continue, the federal government and the province still have the power to act on the UN Committee’s urging and protect the Peace Valley until the underlying treaty rights issue is resolved. Permits and approvals could be suspended, or conditions added to protect the most critical cultural and ecological sites.

The latest statement from the anti-racism committee underlines the urgency of such immediate action. It also makes it absolutely clear that continued construction of the Site C dam risks violating core international human rights protections that Canada has committed to uphold, and which the Trudeau and Horgan governments have defined as central to their mandates.

The Trudeau government, in particular, which is anxious to have Canada elected to a seat on the UN Security Council, has made respect for the rights of Indigenous peoples a central theme in how it presents itself on the international stage. In his address before the United Nations General Assembly in September 2017 — shortly after the UN CERD issued its recommendations on Site C — Trudeau spoke of the “failure” of Canadian governments to respect the rights of Indigenous peoples as “our great shame.” He spoke of the reconciliation process and reiterated the need for a “nation-to-nation” relationship to right the country’s historical, and ongoing, wrongs with respect to Indigenous peoples.

Repeated refusal to respond to, much less address, the anti-racism committee’s concerns over Site C, inevitably undermines the credibility of the image that the Trudeau government has cultivated on the international stage.

Strikingly, the UN committee is also urging the federal and provincial governments to seek independent, expert advice on how to fulfill their human rights obligations to Indigenous peoples, particularly the right of free, prior and informed consent. This comment suggests that the international community is well aware of the wide gulf between the many promises that the Trudeau and Horgan governments have made about upholding Indigenous rights and the reality of the actions in this case.

In correspondence with Amnesty International, the province has offered the bland assurance that First Nations concerns will be addressed by the courts. However, the final court decision on the case may be years away. In the meantime, the province continues to pour money into the project and in the words of a recent statement by the West Moberly and Prophet River First Nations and a number of allies, land clearing in advance of dam construction is coming ever closer to "irreparable harm to the culture and heritage of the Treaty 8 First Nations."

In the long run, a voluntary decision to press pause on the project may prove to be the most prudent move to protect the province’s finances. And it is absolutely clear that doing so would help prevent further damage to the Peace Valley, to the province’s relationships with First Nations, and to Canada’s international influence.