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The TransCanada pipeline from West to East will Contravene International Law PDF Print E-mail
Posted by Joan Russow
Saturday, 03 August 2013 12:28

By Joan Russow

Global Compliance Research Project

August 3 2013

 

There is a moral imperative  to examine theTOTAL IMPACT OF tar sands, and pipelines the fossil fuel dyad; and the importance of addressing the threats, from the dyad, to climate change,  to indigenous rights, to livelihood and subsistence, to, to future generations and to cultural and natural heritage.  And to address the question;Does Canada really need this project?

 

This proposal will substantially increase the impact of the Tarsands not only on climate change but also on the lives of the communities living on or adjacent to the tar sands and the lives of communities adjacent to the pipelines..  http://youtu.be/HqNu-m4zcG4

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1.FOSSIL FUEL DYAD

Under Article 2 of the legally binding UN Framework Convention on Climate change, states, including Canada, are to stabilize greenhouse gases below a level of dangerous anthropogenic emissions

 The TransCanada will facilitate Canada’s increased non-compliance with Article 2. And Canada has already caused a significant move towards this dangerous level

 

2.INDIGENOUS RIGHTS

The United Nations human rights rapporteurs such as

 James Anaya, and Olivier de Schutter, as well the UN Special Representative on the issue of human rights and transnational corporations, John Ruggie, have all expressed concern about the  impacts, on the rights of indigenous communities, from industrial extraction of natural resources, and  from large-scale energy and infrastructure development projects,

 

Article 26.1of Declaration on the Rights of Indigenous Peoples states

 

 Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

 

AND under Article 26.3  is the obligation to 

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.

 

While Canada finally adopted the Declaration, the government proceeded to undermine it by claiming that it was only aspirational. The universal adoption , however, of the Declaration has resulted in the provisions becoming international norms- thus obligations of all states.Sadly the spirit and the letter of the Declaration have now been violated by Bill C-45, in which the government has altered a section of the Indian Act to allow First Nations to give up their rights to reserve lands, without a majority vote of the community . First Nations are now asking for a judicial review HTTP://WWW.CBC.CA/NEWS/POLITICS/STORY/2013/01/07/POL-TWO-BANDS-DUTY-TO-CONSULT-COURT-CHALLENGE.HTML?CMP=RSS

 

3. FREE, PRIOR AND INFORMED CONSENT

Article 19 “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.\’

 Consent   means Consent  not information or mere consultation

Article 26.1of Declaration on the Rights of Indigenous Peoples states

“Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired”. AND under Article 26.3  is the obligation to 

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. Alberta First Nations within and around  the oil sands have been deprived of their livelihood and subsistence.

 

4 LIVELIHOOD WELL- BEING SUBSISTENCE

The right to livelihood was recognized as a human right in Article 25 of the seminal 1948 Universal Declaration of human Rights

In addition, Olivier de Schutter (SHUTTER), the UN Special Rapporteur on the Right to Food, in his 2010 Report, EMPHASIZED “the necessity of access and security of tenure to land, water, grazing and fishing grounds, forests, and other traditional resources for the livelihood security and wellbeing of Indigenous peoples.”

 

Under Article 1 of the legally binding International Covenants on Civil and Political Rights and on Economic Social and Cultural Rights Is the following obligation:

 

 “In no case may a people be deprived of its own means of subsistence”.

 

Alberta First Nations within and around  the oil sands have been deprived of their livelihood and subsistence.

Melina Laboucan Massimo, a Lubicon Cree  decried: "before the tar sands, my community used to live sustainably off the land ; our community was self-sufficient…before my family was able to drink from the waters…

Her concerns are confirmed  by the recent study WWW.TIMESCOLONIST.COM/NEWS/WEATHER/GOVERNMENT-FUNDED-STUDY-CONCLUDES-TOXIC-HYDROCARBONS-FROM-OILSANDS-POLLUTE-LAKES-1.41572

Government-funded study concludes toxic hydrocarbons from oilsands pollute lakes

Bob Weber/ The Canadian Press January 8, 2013

EDMONTON - New research has provided the most conclusive proof yet that oilsands development in northern Alberta is polluting surrounding lakes.

Undoubtedly, BC First Nations will also be deprived of their subsistence, if the Trans Canada pipeline proceeds

5. HUMAN RIGHT TO WATER

In 2010, the UN General Assembly overwhelmingly agreed to a resolution declaring the human right to “safe and clean drinking water and sanitation”

If the TransCanada  pipeline proceeds, the right to water cannot be guaranteed

6 HEALTH

Under article 12 of the Covenant on Economic Social and Cultural Rights is the obligation to recognize  the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. and the obligation to take appropriate steps to ensure the realization of this right,

Undoubtedly the TransCanada pipeline will impact on the physical health of those communities on or adjacent to the tar sands, and in the case of a spill the health of those adjacent to the pipeline will be affected. In addition, the psychological health of those adjacent to the pipeline will also be affected; they will always be apprehensive of a potential spill.

7. BIODIVERSITY

Under Article 8k of the Convention on Biological Diversity is the following obligation;

8(k) to Develop or maintain necessary legislation and/or other regulatory provisions for the protection of threatened species and populations:

The white sturgeon is listed as an endangered species under the IUCN red list of threatened species.

Under Article 8k of the Convention on Biological Diversity is the following obligation;

8(k) to Develop or maintain necessary legislation and/or other regulatory provisions for the protection of threatened species and populations:

 

The white sturgeon is listed as an endangered species under the IUCN red list of threatened species.

http://www.cbc.ca/news/politics/story/2013/01/07/pol-two-bands-duty-to-consult-court-challenge.html?cmp=rss

 

8. FUTURE GENERATIONS HERITAGE

Under the article 4 of 1972 LEGALLY BINDING UN convention on the protection of Cultural and natural heritage, there is the duty of ensuring  the identification, protection, conservation, preservation and transmission to future generations of cultural and natural heritage

Under Article 12, of the Convention on biological Diversity there is an obligation  to conserve and sustainably use biological diversity for the benefit of present and future generations, (preamble, there convention of Biological Diversity, UNCED, 1992)

In the framework Convention on Climate change, there is determination to protect the climate system for present and future generations,

9.THREATS AND THE PRECAUTIONARY PRINCIPLE

There is sufficient evidence that there have been pipeline spills or when this happens, the damage is usually irreversible.

At the United Nations Conference on Environment and Development the precautionary principle was established as an international peremptory norm; it appeared in different versions;

In the universally adopted Rio Declaration, the precautionary principle read;

Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing cost-effective measures to prevent environmental degradation." (Rio Declaration, UNCED1992).

In the Convention on Biological Biodiversity, the precautionary principle read;

Where there is a threat of significant reduction or

Loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat

 

and in the UN Framework Convention on climate change there was the obligation

To take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures

 

 

10 LOST OPPORTUNITY

To fulfill its obligations, Canada should do the following;

 

(i)           Seek, in collaborations with First Nations, World Heritage designation for a network of cultural and natural heritage of universal value;

(ii)          Work , with the First Nations to promote sustainable projects which are cultural appropriate and environmentally sound

(iii)        End fossil fuel subsidies and seriously move away from Fossil fuel  dependency and promote /fund social equitable and environmentally sound renewable energy

(iv)        Embark upon a National strategy to conserve biodiversity. 

 

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