The United Nations Declaration on the Rights of Indigenous People affirms“That indigenous peoples are equal in dignity and rights to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different and to be respected as such.” Yet even as they seek to retain their land and resources, their culture and integrity they are threatened for their very cultural existence by developers as with the Mackenzie Valley Pipeline.
Kofi Annan, United States Secretary General of the United Nations stated, “For far too long the hopes and aspirations of indigenous peoples have been ignored; their lands had been taken, their cultures denigrated or directly attacked, their languages and customs suppressed their wisdom and traditional knowledge overlooked, and their sustainable ways of developing natural resources dismissed.. the answer to these grave threats must be to confront them without delay.” (12 May 2004)
Indigenous peoples are those belonging naturally to a place because they were abiding on their lands before settlers came from elsewhere and were the descendents of the land at a time when others from a different cultural origin overwhelmed them through settlement or conquest. Most indigenous people respect and retain their cultural and social characteristics, their identities and way of life which are distinct from mainstream national populations.
There are many indigenous people in the world, the Innu tribe in Canada, the Aborigines and Torres Strait Islanders of Australia, the Maori of New Zealand, the Indians of the Americas, Aymaras of Bolivia, the Bushmen of Botswana and the Mayas of Guatemala. Indigenous peoples seek to retain their land and resources, their culture and integrity. They are under enormous and growing pressure as loggers, developers, mineral extractors and farmers moved in on their land.
The United Nations Draft Declaration on the Rights of Indigenous People (1993) affirms“That indigenous peoples are equal in dignity and rights to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different and to be respected as such.” It also stated, “That all peoples contribute to the diversity and richness of civilizations and cultures, which constitute the common heritage of humankind.”
The United Nations General Assembly has adopted a nonbinding Declaration on the Rights of Indigenous Peoples for the human rights of native people their resources and land. Canada, New Zealand, the United States and Australia voted against the declaration, this despite each has a large indigenous population. The Declaration calls on nations to give more control to indigenous peoples over their resources and land which they traditionally possess and return confiscated territory or pay compensation.
Historically indigenous peoples have been subjected to expansion into their lands and territories by settlers and their fundamental cultures, status and legal and human rights and even their very existence threatened. Since decolonization with the emergence of new nations indigenous people have been compelled to strive assiduously to retain their separate and integral cultural heritage and identity.
Fitzpatrick (2002) argues that Western civilization set its self in opposition to the constructed “other” and that western identification takes its form by defining characteristics in certain peoples “less occidental than they should be…The exclusion of these “others” is intrinsically antithetical to the West's arrogance of the universal to itself since this arrogance would require the inclusion within the West of those very others excluded in its Constitution. The postcolonial, that is, the person subjected to this process, is thus torn between exclusion as something radically different to the West and the demand to join and become the same as it.”(pp 1,2)
The Canadian federal government claims to have a “fiduciary relationship” towards native peoples and hence regards them as “a separate category of citizen.” Samson (2001) examines the anomalous status of the indigenous peoples who have not been “decolonised and for whom nation- states that exercise authority over them and their lands does so without their consent,” for they have never surrender their autonomy. The settlers regard the indigenous people as “minorities” and the law of the nation is that of the dominant culture and acts in a colonial, alien and hostile manner in its adjudication deeming those aboriginals in Canada who did not cede the title of their lands to the state by treaty to posses “aboriginal title [since] time immemorial.” Their only redress against encroachment by state or development forces is the Comprehensive Land Claims negotiations with provincial or federal government. This provides certain safeguards of compensation but does not prevent development. Further it is from a legal system which the indigenous peoples are compelled to defer, despite that they have “not signalled their consent.” (p 243). The European derived political system has little understanding or empathy for native peoples and their values. The Environmental Impact Assessments Procedures which are designed to monitor the environmental and cultural effects of proposed commercial developments give voice to the indigenous peoples as only “one interest group.”(Notzke 1994 )
The provincial authorities impose policies of “sedentarization” towards the nomadic hunter Innus which attacks their traditional culture and way of life. Their “rights” are adjudicated by a judicial system that is from a colonial political system .The Native Americans’ “world view, social forms and spiritual values attached to [hunting] are active and present engagements... modified by their own shifting stories, the migration of the animals, and force of each new season.”(Samson 2001 ). “Hunting wisdom emerges in immediate and direct experience with the land, the animals ... traditional ecological knowledge… movements of nature.” (p 237)
Indigenous peoples are facing disruption of traditional ways of life by the actions of economic interest by discriminatory government policies and the activities of private economic interests. They urgently need laws and standards to protect the cultures, territory and livelihoods, to prevent their social and legal marginalization and uphold their fundamental human rights.
One example of and participation of indigenous people working with a national governments is the Mackenzie Valley Pipeline Inquiry. The pipeline was proposed to transport natural gas through the Canadian Northwest Territories from the Beaufort Sea to northern Alberta. The first proposed project in the early 1970s was scrapped after the implementation of the recommendations of the inquiry conducted by Justice Thomas Berger who has an abiding concern for the moral and legal rights of indigenous people. Its investigations and outcome are examined in this paper. The inquiry, which investigated the prospect of a pipeline through the traditional territories of the First Peoples, one of the richest ecosystems in Canada's north, is notable because it gave voice to the indigenous people of the Northwest Territories. The inquiry is precedent-setting and stands as a beacon for any such contemporary inquiry. As the commissioner of the Inquiry, Justice Berger wrote an extensive report “Northern Frontier Northern Homeland” (1977) which had enormous impact on the assertion that aboriginal rights and entitlements must have a distinct place in Canadian law, culture and society. As Berger (1977) states the North is a frontier, but it is a homeland too, in homeland of the Dene, Inuit and Metis as it is also the homeland of the white people who live there. And as it is a heritage, a unique environment that we are called upon to
preserve for all Canadians.
The proposal to construct the pipeline was effective shelved due to the report and the recommendations of Judge Berger who warned of the far-reaching environmental impact that would make the pristine Mackenzie River Valley an “ energy corridor” laden with roads, maintenance bases, air strips, feeder pipelines, electorate utilities, storage sites and new towns. There would be fragmentation wilderness, reduction of boreal carbon sequestration capacity, loss of biodiversity and permafrost melting and frost heaving which would cause breaks and cracks in the pipeline causing leakage and environmental damage.
A consortium headed by Imperial Oil Resources Ventures Limited is endeavouring to resurrect the project to transport gas through a pipeline travelling across the environmentally sensitive tundra, prompting concern over the social and environmental damage which it will irreversibly cause. Imperial Oil is seeking between $2 to $3 billion in federal subsidies for the project to build two pipelines and three natural gas fields. As The Sierra Club of Canada (2005) states, these companies “are fabulously profitable as a result of high oil and natural gas prices [receiving] 1.4 billion in annual federal subsidies... Instead of subsidizing multinational companies to build environmentally destructive megaprojects, the federal government should focus on investing in energy efficiency and alternatives to fossil fuels.”(p2).
Current initiatives to resurrect the Mackenzie Valley Pipeline were initiated in 2004. The goal by Exxon Mobile, the majority shareholder of Imperial Oil, is to have the natural gas piped through the system by 2010. Rex Tillerson, the president of Exxon Mobile stated on CBC News (10th November 2005) “My expectation is the Mackenzie pipeline will go forward.” The McKenzie Gas Project proposes to implement development of natural gas fields in the Mackenzie Delta of the Northwest Territories of Canada to deliver natural gas through a pipeline system constructed along the Mackenzie Valley. Imperial Oil, as part of a consortium of companies, wants to build a 1,200 kilometre pipeline to the Alberta border, where Arctic natural gas would connect to the existing pipelines to flow south. Exxon Mobile claim to care for the environment and the welfare of the aboriginal, northern and Canadian people, (Rex Tillerson, CBC News 10th November 2005), but as Turner (1998) states in the case of the of the Brazilian Kayapo with the indigenous struggle over forest resources in the Amazon, “The indigenous people will resist if they can, even if the policies responsible for the destruction have been sanctioned by their own leaders and produce a modicum of wealth.”(p 11). As Berger (1988) states “Bureaucracy and industry usually share the same priorities: their interests are interlocked, and they usually lie far from the interests of native northerners.”(p 6)
The McKenzie is one of the world’s greatest rivers and almost unique in its natural state with no dams or diversions along its course and possessing a valley which has biophysical features of global significance.The World Wildlife Fund of Canada (2007) states, “In the Northwest Territories Mackenzie Valley, only five of the 16 ecoregions that are directly intersected by the proposed major gas pipeline or adjacent hydrocarbon development areas are reasonably represented by protected areas.” They point out that the Mackenzie Valley located in the Northwest Territories covers almost a fifth of Canada and that the watershed is countries’ largest with its northern reaches unspoiled and almost pristine, being home to grizzly bear, wolves, caribou, lynx, moose and enormous populations of migratory ducks, swans,loons,shore birds and raptors.(p1)
The Sierra Club of Canada (2005) are adamantally opposed to the construction of the Mackenzie pipeline because of the perceived environmental impact and the irretrievably damage to the Boreal forest ecosystems and “one of the last wild places on Earth.” They state the $7 billion project, the largest project in the history of the Canadian North “would fragment intact boreal forests along the Mackenzie, Canada's wildest big river, and damage habitat for species such as woodland caribou and grizzly bear. McKenzie gas is slated to fuel further development of Alberta’s tar sands, which produces the most damaging type of oil for the global atmosphere, through another pipeline to Fort McMurray.” (p1)
It seems timely and central to any contemporary adjudication or inquiry by the federal government, that the 1976 Mackenzie Valley Pipeline Inquiry, its report and recommendations, arguments and social, cultural, political and environmental implications, including the cumulative impact on biodiversity, be given due weight and value. The Berger commission exposes these impacts in a landmark consideration emphasizing the preservation of nature in the environment contexts of the indigenous people of the region, who are an integral part of the boreal ecoforest system. The forces of transnational capitalism menace the pristine survival of this sensitive arctic tundra area and the cultural survival of the indigenous people of the region. Turner (1998) points out the importance of the “traditional forms of environmental adaptation and subsistence” which evolves in the alliance of the environment and the indigenous. (p1) Berger (1988) states, “There is no place in our ideas of progress for the idea of a viable hunting and fishing economy… the attack on subsistence economy has come from every quarter: from those who wanted to change the native people, from those who wanted their land.” (p 7)
In 1971 the Canadian Arctic Resources Committee was created to work with the Inquiry from the preliminary hearings until the final argument engaging in participation on a full-time, funded, base. The federal government of Canada commissioned an inquiry to be chaired by Justice Thomas Berger to investigate the environmental, economic, social and regional impact of a pipeline across the McKenzie Valley.
During the inquiry Justice Thomas Berger heard evidence from a number of different groups with an interest in the pipeline and its impact, in particular he gave a voice to the indigenous peoples on whose traditional territory the pipeline would traverse, and examined the impact on the lives, culture, traditions and environment of the indigenous people living its path. Berger insisted that his mandate could only be properly and justly carried out with the participation of the indigenous people of the Northwest Territories, hence he ensured that funds were made available to the indigenous organizations to conduct fieldwork inquiries within their communities and also for representation within the inquiry. The indigenous organizations were the Committee for Original Peoples` Entitlement (COPE), the Council of Yukon Indians (CYI) and the Indian Brotherhood of the Northwest Territories ((IBNWT).
It was recognize that environmentalists also had concerns that would be deep and pertinent and were relevant, akin and often synonymous with indigenous concerns. Because of this assimilated partnering the Canadian Arctic Resources Committee provided technical and scientific information for the indigenous and environmental groups and The Northern Assessment Group (NAG) was approved and funded by the Inquiry.
The summer before the hearing was formerly opened, Justice Berger travelled throughout the Western Arctic region meeting informally with the Métis, the Inuit and the Dene and other inhabitants of the area. He held formal hearings in Yellowknife and heard the evidence of experts. His innovatory approach to the inquiry was to ensure the establishment of community hearings. These hearings were held in log cabins, tents or sometimes outdoors and often concluding with traditional drum dances and cookouts. Berger travelled to remote communities throughout the North. He took the inquiry to 35 communities, to every town, village and settlement in the Mackenzie Valley and the Western Arctic, a vast area where people are from four races and speak seven different languages. He listened to the evidence of almost a thousand Northerners and was enthusiastically received by native residents. The Native Press (12th April 1976) the newspaper of the Indian Brotherhood of the Northern Territories described the inquiry as a welcome approach by the Canadian government and the first time that the people have been consulted before the government proceeded on a major project.(p 16) Berger (1988) holds, “What is remarkable is that despite the attempts to separate native people from their language, history and culture they have retained their distinctive identity.”(p8).
As Berger (1977a) states, “We are now at our last frontier. It is a frontier that all of us have read about, but few of us have seen. Profound issues, touching our deepest concerns as a nation await us there.” He states the decisions are “not simply about northern pipelines. They are decisions about the protection of the northern environment and the future of northern peoples.” (p vii) Berger states that the people in the North have strong feelings about the pipeline and the large-scale frontier development. On one specific day he heard a northern businessman in Yellowstone say he favoured the pipeline , while in the same day in a native village almost the whole community were forcefully opposed to the pipeline. “Both of those were talking about the same region, but for one group it is a frontier, for the other a homeland.”(p vii). The Canadian metropolis’ demands for resources are being pursued to the frontiers of the wilderness, home to the native peoples of the North. The opposition between the indigenous peoples and the dominant society is an opposition of values and culture. Should the Arctic predominate as a place of intensive large-scale technological industry or as a place of ecological wilderness harmony protected by a people who have held and occupied it for thousands of years.
The fishing, hunting and trapping enterprises of the indigenous population ensured long-term traditional renewability of resources. They believe that if the McKenzie pipeline is built they will be overwhelmed and marginalized by the influx and the native villages would transmute into white towns, appendages to industrialization and they would lose their identity, values and culture.
Berger determined to ensure that the Mackenzie Valley Pipeline Inquiry attests to these concerns and respects the self-determination emerging of the indigenous people’s concept of their future. He had to examine the economic, social and environmental impact of an energy corridor running from the Beufort Sea in the Arctic North to the mid-continent.
Berger is concerned with the impact of the infrastructure which would inevitably develop to support the gas pipeline. There would be an oil pipeline, a huge infrastructure of airstrips, maintenance bases, warehouses, storage sites, roads and new towns which will be the equivalent of building a railway across the territory. “There would be a net work of hundreds of miles of roads built over the ice and snow.” The Arctic Gas Project would double the amount of barges and tugs on the Mackenzie River. 6, 000 construction workers would needed to build a pipeline and 130 gravel mining operations required with innumerable tractors, earth movers, trucks and aircraft. There would be 600 stream and river crossings, “just to build the pipeline.”(Berger Thomas R. 1977)
Canadian Arctic Resources Committee (1976) submitted to the inquiry that, “The intrusion of the pipeline upon an untouched area is a reversible and tragic… Canada has an obligation internationally to preserve its unique areas and ensure the survival of its living resources.”
The Yukon territory is a uniquely beautiful but environmentally fragile area of Canadian Arctic and sub Arctic wilderness with 9 million acres of land of rich ecosystem, thriving with diverse animals and plants. Berger Thomas R. (1977a) states “This wilderness has come down through the ages, and it is a heritage that future generations, living in an industrial world even more complex than ours will surely cherish.”(p34)It is the traditional home of the Old Crow who depend on the Porcupine Caribou a migratory wildlife herd and which flourishes throughout Northern Yukon due to the geographic isolation of the region. The Porcupine Caribou is one of the last herding herbivores in North America and “one of the greatest wildlife spectacles left to man.” As Peter(1994) states “For countless generations caribou have provided the many villages along its migration route with all this is necessary, food, material for clothing, shelter and tools… the very culture of aboriginal people is interwoven with the lifecycle of the herd.”(p2) The herd follows their traditional migration routes. As Berger (1977) points out roads and pipelines can act as barriers and cause delay in their movement or “abandonment of part or all of the traditional range.”(p 96) Calving takes place in summer on the Arctic Coast Plain of the Yukon which provides the uniquely favourable habitat with good foraging to nourish the herd for their winter southern migration. Caribou are vulnerable to industrial development and increased contact with people. A highway and any pipeline would dissect the herds winter range and destruct their migration routes and encourage hunting of the caribou. As Berger (1988) warns unrestricted access for hunters would lead to intolerable pressure on the herd
Polar bears are an endangered species under the International Convention on Trade in Endangered Species and of the 20,000 polar bears in the world, 15,000 are in Canada. In evidence the Canadian Arctic Resources Committee stressed the danger to their numbers if their feeding and dening areas were destroyedthe barren ground grizzly bears is indigenous to Canada and may like the polar bear, the wolf and the fox be attracted to the waste disposal sites of camps which can lead to a negative interaction with man.
Canadian Arctic Resources Committee (1976) gave evidence that the symbiotic relationship between polar bears, seals, white fox and the lemmings on banks on and is a delicate one and if one element of the interaction is disturbed this can disrupt the relationship.
Canadian Arctic Resources Committee (1976) gave evidence regarding the habitat of marine mammals, whales and seals. The bowhead and beluga or white whales are endangered marine mammals upon whom the indigenous people rely for harvesting. Whalers reduced the numbers of bowhead whales almost to extinction levels and there are only about 5000 beluga whales in the Beaufort Sea. Whales congregate in the McKenzie River estuary late June, early July as soon as the ice allows it and remain in around the channel mouths until mid August. The warm water in the shallow area of the McKenzie river mouth and Shallow Bay is an essential habitat for the new born young until they develop sufficient blubber to survive the cold oceanic waters. The combined activities of dredging and pipe insulation at the Shallow Bay crossing would create a physical obstruction for the whales and prevent them from entering the Bay for calving. White whales are sensitive to disturbance in their habitat during calving and the disturbance of construction of man-made offshore islands and oil and gas activities “could so disrupt the whale herd that they would be unable to reproduce successfully and in time the herd would die out..[and cause] stress and dislocation” (S 45) this would cause “depletion in the new born population.”
Justice Berger acknowledged these factors and also that potential oil spills from tank accidents or blowouts would be a threat to whales as well as other marine wild life, such as seals, which the Inuits of Tuktoyakktuk, Paulatuk,Sachs Harbour Holman and Coppermine depend on for hunting . For the Inuit, seals are both the food of the people and income and part of the unique ecological system of production vital to the indigenous people. (Berger Thomas R. 1977 Berger Thomas R. 1988 ) .An oil spill in Arctic waters would also have other far-reaching environmental impact with the muskrat and beaver populations been particularly vulnerable particularly in the Mackenzie Delta, The Ramparts River and the Old Crow Flats which are main muskrat areas. Muskrat are a major source of food and income and its populations are concentrated and “an important element in the ecological web of the Northern wetlands.” Beavers are an important part of the indigenous trapping industry if their habitats are disturbed they will not thrive.(Canadian Arctic Resources Committee 1976 ). An oil spill would cause immense damage to snow geese and waterfowl which use this region during critical periods and the pipeline may even cause snow geese to reroute “compounding the environmental impact.”
Fish have a subsistence value in the Yukon and Northwest Territories to indigenous peoples. North stocks grow slowly and would need to long recovery if the numbers were reduced. The Arctic gas proposal indicated they intended to have stream crossings for 150 rivers and streams in the Northwest Territories and Yukon with six major river crossings out of the 600 rivers and streams north of 60°. Such fish summer feed in large areas but return to restricted areas to spawn, construction could lead to depreciation. Gravel extraction, oil spills, glossing in the beds, river crossing and possible oil spills a hazardous to the fish population which is an integral part of the indigenous cultural and environmental integrity. Deterioration of water quality could have a far-reaching effect. (Canadian Arctic Resources Committee 1976 )
The Canadian Arctic Resources Committee (1976) gave evidence that waterfowl, particularly snow geese would be disrupted. They congregate in large flocks and the Mackenzie Valley Delta, Beaufort Sea Coast and its bays lagoons barrier islands and spits are important migratory, breeding and moulting areas. The coastal plain of Yukon is an important staging area for snow geese. (S 62-65) In the late August thousands of snow geese gather on the Arctic coastal plain to feed on tundra grasses before they embarking on the flight to their wintering ground. (Berger1977) Berger held that in Northern Yukon there should be no pipeline or energy corridor in part to protect the vital habitat for waterfowl.” (Berger1977)He held that the Northern Yukon is “a wilderness of incredible beauty, a rich and varied ecosystem... Inhabited by thriving populations of plants and animals. This wilderness has come down through the ages and this is a heritage that future generations, living in an industrial world more complex than ours will surely cherish.” (Berger1977)
Justice Thomas Berger recommended that no pipeline be built and no energy corridor be established across Northern Yukon due to the likely irreparable damage to the wilderness, the Porcupine Caribou, the migratory birds, the snow geese , the waterfowl and other wildlife. He also recommended that no pipeline or energy corridor be constructed across the Mackenzie Delta because the Beaufort Sea is calving ground of the white whales and impact of construction of offshore drilling islands and barge traffic and potential oil spillage which mean the eventual loss of the herd the 5000 whales. Eventually a pipeline corridor might be feasible from the Mackenzie Delta a long the Mackenzie Valley to the Alberta border. Justice Berger held any construction be postponed for at least ten years to establishing conservation areas and deal with issues of Aboriginal land claims. Justice Berger stated that he based his recommendation on the evidence of the indigenous peoples who believe that the establishment of a pipeline would overwhelm their culture and communities and subject them to an industrial system which gives no place to their culture and the values which they cherish and wishes to subdue the land they cherish and extracts its resources and having no regard for their traditions of fishing, hunting and trapping. Berger urged that the wilderness areas in the far north be jointly managed by the Native people and the Parks Canada. Justice Berger stated the Native people want to be guardians of their land. They take a historical view and holds that that culture should not be discarded for a perhaps more transient industrial system.
As Berger (1988) states, “Let me make it clear that if we decide to postpone the pipeline, we shall not be renouncing on northern energy supplies. They will still be there. No one is going to take them away. In years to come it will still be available as fuel.”
As Berger (1988) states, “We have the opportunity to make a new departure, to open a new chapter in the history of the indigenous peoples of America. We must not reject the opportunity that is now before us.”
The inquiry is notable and precedent-setting because it gives voice to the Native people of the Northwest Territories concerning their traditional territories, the ecosystems of the arctic and subarctic wilderness of the Canadian North.
As the Canadian Arctic Resources Committee (1976) stated in the preamble, to Justice Berger,
“Your Inquiry has shown that if you treat citizens as equals and respect their procedural concerns they will respond in a positive manner. The inquiry has shown that if you give citizens the time and the means to understand complex issues they will not only participate but will bring new dimensions and new insights to bear on technological and social programs. It is for this reason that the Berger Inquiry will be remembered not as an isolated experiment but as a model for future decision-making.”
