Kinder Morgan expansion must not proceed:it would contravene Canada's international obligations Print
Justice News
Written by Joan Russow
Tuesday, 25 November 2014 20:43





The remedy [of injunction] of course, is an equitable one. "The exercise of the equitable jurisdiction is not to be restricted by the straitjacket of rigid rules but is to be based on broad principles of justice and convenience, equity regarding the substance and not merely the facade or the shadow. It moves with time and circumstances. (Justice J.A. Norris) 


injunctions must move  with time and circumstances in relation to international law; the judge should never have originally  granted an injunction; 


The Kinder Morgan Expansion must not proceed. 


Currently, submissions are being made to the National Energy Board, and any mention of climate change is prohibited, and it is doubtful that other references to relevant  international law will be taken into consideration.. There is no option, for First Nations, to cross-examine  Kinder Morgan and  no provision for equitable access to  funding for preparing presentations to the panel.


References to obligation under international law that must be taken into consideration



It is imperative to examine the TOTAL IMPACT OF oil sands, pipelines and tankers, and the importance of addressing the threats to indigenous rights, to livelihood and subsistence, to marine life and resources, to future generations and to cultural and natural heritage. And to address the question: Does Canada really need this project?

 After reviewing the terms of reference , I realized that the current terms of reference of the Review panel have ignored many of key  issues even though Canada is legally bound under international law



 Under Article 2 of the legally binding UN Framework Convention on Climate change, all states including Canada are legally bound “to stabilize greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic  interference with the climate system. .The Harper government has already contributed, through fossil fuel subsidies, through reneging on Kyoto Protocol and through making a weak commitment in Copenhagen, to a dangerous  anthropogenic interference with the climate system.


The Kinder Morgan expansion will further exacerbate the situation.




 “the United Nations Declaration on Rights of Indigenous Peoples, came out of the recognition of the urgent need to respect and promote the inherent rights of indigenous peoples”

Under Article 18:

Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.


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, and informed consent before adopting and implementing legislative or administrative measures that may affect them.


 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.


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.


And under Article 31 is obligation to accept that
 1. Indigenous peoples have the right to maintain, control, protect and
develop their cultural heritage, traditional knowledge and traditional cultura lexpressions, as well as the manifestations of their sciences, technologies andcultures, including human and genetic resources, seeds, medicines, knowledge ofthe properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural
heritage, traditional knowledge, and traditional cultural expressions.

2. In conjunction with indigenous peoples, States shall take effective
measures to recognize and protect the exercise of these rights. 


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.



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

 Under Article 1 of the legally binding International Covenant on Civil and Political 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…”

 Undoubtedly, BC First Nations will also be deprived of their livelihood and subsistence, if the Kinder Morgan  expansion proceeds and the pipeline will further increase the development  of the tar sands and the destruction of first nations territory in Alberta



 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 Kinder Morgan pipeline expansio proceeds, the right to water cannot be guaranteed





 Under article 12 of the legally binding International 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.”

Already reported spills, in the existing Kinder Morgan espansion  have caused harm to human health,  to the environment, and to the  right to livelihood





Under Article 194 5. of the legally binding UN Law of the Sea is the obligation

to prevent, reduce and control pollution of the marine environment and to take measures necessary to protect and preserve fragile ecosystems as well as the habitat of … forms of marine life.

And under Article 66 1&2, of the Convention is the following obligation:

1. States in whose rivers anadromous stock (such as salmon and surgeon) originate shall have the primary interest in and responsibility for such stocks and shall ensure their conservation

In the omnibus bill 38 the Harper government weakened section 35 of the Fisheries Act; Undoubtedly, the weakening of section 35 was in contravention of the Law of the Sea and its agreements.




 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,

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




Under the Convention is the obligation to conserve biodiversity

"Biological diversity" means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.


 The destruction of Burnaby Mountains is contributing to significant loss of biodiversity.





 Canada is bound by the precautionary principle which reads

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


This principle is also contained in

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


in the UN Framework Convention on climate change

 and in1995 agreement “relating to the Conservation and management of straddling fish stocks and highly migratory fish stocks …is the obligation to invoke the precautionary principle.

 There is sufficient evidence that , in the Burnaby mountain,  and through the proposed pipeline, there could be serious irreversible damage, loss of significant biological diversity, adverse effects of climate change, and harm to marine life to justify invoking the precautionary principle and end the fossil fuel triad.  




 If the Kinder Morgan expansion is permitted to proceed, Canada, in collusion with the court system, will demonstrate yet again its defiance of international law.

I raise these issues of international law because from my experience at international UN conferences, the Harper government has caused Canada to be perceived as an international pariah because of its obsession with profiting from the tar sands at any cost, while being willing to disregard its duty to guarantee fundamental indigenous and ecological rights and to discharge obligations under international law

 Proceeding with the kinder Morgan pipeline extension would be grossly negligent. There is sufficient evidence of precedents, such as spills, regional earth quakes, potential tsunamis, grounding of a drilling rig and widespread pollution of land and water bodies.

 Everyone is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons” (where ‘duty’ means a duty imposed by law). (Section 216, Canadian Criminal Code.



British Columbia does not need the Burnaby Mountain pipeline extension.  





Last Updated on Saturday, 29 November 2014 09:56