HUMAN RIGHTS AND RESOURCE DEVELOPMENT IN ALBERTA:

A WORKSHOP

October 4-5, 2002

Summary of Proceedings

Friday, October 4, 2002

Session 1: Health and Cultural Concerns Relating to Resource Development

Janet Keeping: Introduction

• Importance of natural resources development to Alberta’s economy.
• CIRL/ACLRC mandate one of legal research and education, not advocacy.
• Preliminary research revealed two areas of primary concern amongst Albertans in relation to impacts of resource development: health and cultural integrity.
• Albertans are increasingly using the language of rights to express these concerns.
• Oil and gas development chosen as focus for first phase of project; future research to look at development of other resources.

Richard Schneider

• Recent survey indicates that public values reveal a strong preference for protection of Alberta forests.
• Although legal and regulatory framework emphasizes sustained yield, in reality there is no requirement for maintaining forest integrity. The following problems result:
• Liquidation of old growth
• Elimination of mixed woods
• Petroleum sector does not have to meet the requirements of the forestry industry—habitat loss takes 30+ years to recover. Yet in some areas of the boreal forest the petroleum industry harvests almost as much forest as the forestry industry, and often the forestry and petroleum industry will operate on the same land. There are no requirements for integration or communication between the two industries, which results in huge cumulative impacts.
• No reforestation requirements
• No limit on annual rate of cutting
• No limit on cumulative impacts
• Impact on caribou herds
• Richard Schneider’s newly published book: Alternative Futures: Alberta’s Boreal Forest at the Crossroads. See www.fanweb.ca.

Nashina Shariff

• Large amounts of toxins have been found in the air, and the World Health Organization has stated that no level of hydrogen sulfide is safe.
• Canada has set limits of 50mcg. / m³ as “safe”.
• In the oil sands, particular hazards exist in that each producer, individually, meets government guidelines but the hydrogen sulfide that is produced cumulatively goes beyond those levels.
• There is a 1% increase in mortality rates in Fort McMurray.
• 10 mcg / m³ takes two years off a person’s life. Fort McMurray’s levels of hydrogen sulfide will reach that soon.
• Hydrogen sulfide limits lung growth and capacity in children, which will create health problems that carry on into adulthood and make them even more susceptible to environmental pollution.
• Sulfur dioxide is also released in substantial amounts and is able to travel long distances, unlike hydrogen sulfide, which is a heavy gas.
• Benzene is another gas that is found in the atmosphere of Fort McMurray and has been shown to have direct effects on the development of leukemia.
• Fort McMurray’s population has increased dramatically; the population is suffering from environmental pollution and yet there has been no increase in social services or health care in the area to cope with the problems that are developing.

Peter Snow

• Aboriginals have many concerns regarding resource development in Alberta. One of their greatest concerns is that their warnings about environmental damage are only validated when they are reiterated by scientists.
• Aboriginals also struggle to find the right language to describe environmental pollution and development issues, as these have not been part of their history.
• Doubtful that alliances between aboriginals and other groups is possible because their interests are too different.
• Aboriginals are still striving to prevent development near cultural sites and this issue is of primary concern for them.

Andrew Nikiforuk

• Nikiforuk pointed out that there are two kinds of injustice: doing an injury, and failing to protect those to whom an injury is done (Roman proverb).
• Presented evidence on oil and gas development, quantities of oil and gas, and the demand for more—estimate that the existing supply of natural gas will last us only 8 more years. We are exporting more gas than we are finding and American demand is driving our oil and gas exports. This is the real reason behind increasing expropriation of surface rights in Alberta. We are facing resource depletion.
• 75% of the EUB’s budget comes from industry.
• The harms that landowners in the province face are:
• Toxic air pollution (rates of asthma, MS highest in Canada and the world)
• Loss of property rights
• Displacement
• Flaring has not subsided despite EUB recent measures. Venting has also increased.
• The issue is also one of economic waste. The amount of flared gas could provide power for the City of Calgary for one year.
• Low royalty rates in comparison to other producing countries and a large portion of the profits are going south of the border to U.S. multinationals.
• Nikiforuk ended his presentation with a few suggestions for reform, such as regulatory measures to end flaring/venting and free water use, better land use planning, EUB funding by government rather than industry, the creation of a clean-up fund and addressing the need for compensation.

In response, many comments from the floor indicated broad agreement with the views and concerns expressed by Nikiforuk. People sense things are wrong, but may not have the knowledge or skills to amass the facts and figures needed. Nikiforuk provided some of this factual information which he has uncovered in his research. One audience member pointed out that there are no records kept in Alberta on persons harmed by hydrogen sulfide—and the government has refused to do so. However, there are very high rates of multiple sclerosis in some areas which could indicate toxic damage.

There was also discussion about the Graff family mentioned by Nikiforuk. Idea that they were essentially displaced from their land (had 3 months to sell their farm) without any compensation. Nikiforuk broached the issue of private property rights versus the “public interest”.

Other comments from the floor/panel during Session 1:

• Discussion of jurisdictional issues regarding provincial boards dealing with Aboriginal peoples.
• Is there a Charter argument for people displaced by oil and gas companies?
• Need for an independent agency to represent landowners and aboriginal peoples. Need to restructure EUB and ensure appropriate representation from a broader sector of public affected by oil and gas development.
• Further questions were asked about oral evidence/traditional knowledge in aboriginal cases.
• Some audience members expressed significant concern, anger and frustration with how oil and gas development is proceeding in Alberta – in particular, as concerns human health. Some resistance to the notion that oil and gas has brought any benefit to this province.
• Frustrations expressed that landowners, farmers and ranchers do not feel recognized for what they contribute to the economy of Alberta and to our well-being (e.g, as food producers). They feel overlooked, ignored generally and feel as though they are slowly being displaced. Many stated they are losing their livelihoods and ways of life because of oil and gas development and they feel helpless.

 

Session 2: Human Rights Law in Alberta

Linda-McKay-Panos

• Summary of human rights law in Canada – both domestic and international law. Overview of key concepts and what the sources of human rights are that apply to Albertans. Detailed outline of presentation provided to participants.
• Many questions for Linda after presentation. Biggest hurdle noted are the costs involved in bringing any kind of action, knowing it could be a long battle.
• Concerns also expressed about environmental harms that have already taken place. That is, although there are rights that may be used to force government to regulate oil and gas companies more stringently, what do you do when the water and air or the ground you work is already polluted? According to Nikiforuk’s earlier presentation, the soil at 10% of oil and gas sites is radioactive after the companies leave.

Session 3: Health as a Human Rights Issue

Jennifer Koshan

• Overview of possibilities of finding health rights protected in domestic law – in particular, the Canadian Charter of Rights and Freedoms. Most promising avenue: section 7 which protects life, liberty and security of person. No cases directly on point yet, but some hints courts could go there.
• Threshold issues: standing, justificiability, must be government action for the Charter to apply. Other avenues: section 15 (equality rights) and the unwritten constitution. Strategic considerations: cost, difficulties of proof, availability of remedies. Another strategy: use constitutional principles to lobby government and advocate for law reform outside court process.
• Detailed summary of Jennifer’s presentation provided to participants.

Nickie Vlavianos

• Overview of international human rights law that might protect people’s right not to be exposed to harmful substances. Possible avenues: right to life, liberty, security of person; right to health; right to clean/healthy environment. Some of these are more established than others. None have clearly been held to protect right to breathe clean air/be free from toxic substances yet, but there are signs that the law may be going in that direction. In particular, decisions from regional human rights bodies (eg. European Court of Human Rights and African Commission on Human Rights) suggest that international norms are evolving in that direction.
• Detailed summary of presentation provided to participants.
• Discussion after these two presentations suggested some optimism that some of this emerging human rights law may provide avenues of protection for Albertans affected by oil and gas development, but many obstacles were noted as well. These included issues of cost, proof, and the fact that Alberta currently does not yet allow class action proceedings making it difficult for some of these claims to be brought.

Session 4: Cultural Integrity as a Human Rights Issue

Janet Keeping

• Janet discussed human dignity as a background to rights to cultural integrity, and the different Covenants in international law that support an argument for aboriginal cultural integrity. Of particular note is the decision of the United Nations Human Rights Committee regarding the Lubicon Lake Cree Band in Alberta. The Committee held that the Canadian government had violated the Lubicon Band’s right to cultural integrity in international law by allowing significant oil and gas development on their land.
• Detailed outline of presentation provided to participants.
• Comments from the floor:
  • Sharon Venne had been harassed by the Canadian government and threatened when acting on behalf of the Lubicons in Geneva.
  • A great deal of frustration expressed with international law and the inability to enforce international law standards. The Lubicon case is a success internationally, but in effect, it made no difference domestically. The Lubicon’s land claim has still not been settled.
  • Anger also expressed by the amount of money government is willing to spend on defending their case against aboriginals—government too dependent on oil and gas revenue and blind to other sources of revenue such as agriculture.
  • Division of powers between federal and provincial governments viewed as a hurdle to overcome in any litigation in this area.

 

Session 5: Overview of the Oil and Gas Regulatory Process in Alberta

Steven Kennett and Monique Ross

• Overview of the process of oil and gas development in Alberta, from how mineral rights are disposed of by the government to how oil and gas companies obtain licences and approvals to drill and produce. Highlighted the points of state action that could be a trigger for human rights claims. Also highlighted where the opportunities are (if any) for public concerns to be voiced in the current process.
• Outline of presentation presented to participants.
• Comments/questions from the floor:
  • Some expression of confusion/lack of information about the EUB. Issue of whether the EUB is truly a “quasi-judicial” body raised.
  • Anger and frustration expressed over the fact that the Board is appointed largely from industry and funded by industry, resulting conflict of interest situation (“captive regulator”). Board cannot be free of bias when it is appointed from industry to approve industry applications.
  • Alberta Environment only assesses on a present day basis—there is no or very little baseline data available for environmental assessment.
  • Three year study undertaken on the impacts of oil and gas development on health in an area of Alberta discussed. Study group did five different drafts, and the fifth draft had no relationship to the facts that were uncovered — suggestion that the scientific information in the final report of the study was “fudged”.
  • Further questions about finding a good environmental lawyer to take on a case and the costs involved — Sierra Legal Defence Fund mentioned as possible low cost avenue. Great deal of frustration also expressed with the legal system —costs, lack of lawyers to take claims against the government and oil companies, “blacklisting,” etc.
  • Discussion about the Access to Information Act — EUB does not easily give out information, so how do you go about getting it?
  • Environmental impact assessment reports not peer reviewed; approved by the Director and circulated to other government departments for agreement — should be a more transparent process.
  • Regulatory process characterized by “informality” and relies on “unwritten rules”. How can the process be fair when approval is based on “informal” talks between oil companies and EUB? Landowners are not adequately represented.
  • Under the federal Canadian Environmental Protection Act, dioxin is listed as a toxic substance, but it is released in Alberta every day. It is the only substance that causes bone and connective tissue carcinomas — increasing number of illnesses like this reveal that dioxin is released.
  • The federal government regulates radioactive substances. Farmer’s land is radioactive — it can be measured in the soil — but the government says there is not enough to worry about. Audience expressed a deep concern with the lack of monitoring. Anger expressed that if the government doesn’t “know” about something, then they do not have to act. Suggestion that this may cause government resistance to uncovering knowledge and facts about pollution levels.
  • Comments on negotiating leases: The “quiet enjoyment” clause does not work both ways.
  • Publication by the Pembina Institute for Appropriate Development entitled “When the Oil Patch Comes to your Backyard: A Citizens’ Guide to Protecting your Rights” (2001) useful reference for landowners. Special mention made of section in publication that deals with specific things landowners should negotiate to have included in surface leases.

 

Saturday, October 5, 2002

Session 6: Applying Human Rights Law to an Oil and Gas Project in Alberta

Panel: Linda McKay-Panos, Janet Keeping, Nickie Vlavianos

• Linda introduced the Case Study provided to the participants and highlighted the main facts and issues arising from those facts.
• Starting at the stage of how mineral rights are disposed of in Alberta, Janet made the following observations:
  • Questioned why no one has yet taken any action to challenge the way minerals are disposed of in this province without public input. Could perhaps seek an injunction preventing disposition.
  • Suggested that human rights remedies may be available at the rights issuance stage. There is at present no opportunity for public involvement in the rights issuance process—can a right be impaired without public involvement?
  • Administrative law—rights to be heard, rights to notice, etc.
  • Charter—s. 7, security of the person
  • International law
  • Discussed current bidding process applicable to the sale of oil and gas rights on Metis settlement lands — residents must be notified and affected persons given an opportunity to identify concerns before the sale takes place. Suggested this could be a model of broader application.
• Linda discussed possible human rights arguments in relation to the current environmental impact assessment process in Alberta. She noted that:
  • Oil and gas wells are not subject to assessment.
  • There is a pressing need to adequately address cumulative impacts in the province. Case study illustrates how cumulatively the impacts may be significant, even though any single well may not be. How can human rights law address cumulative impacts?
  • Expansion of gas plant in Case Study may trigger environmental assessment process.
  • Potential impacts on the fish in the river in the Case Study would trigger federal government involvement and perhaps the federal environmental assessment process.
  • Need an identification of baseline concerns.
  • Questions of procedure if the assessment does not comply with Alberta’s Environmental Protection and Enhancement Act — can it be challenged under s. 7 or s. 15 of the Charter?
  • How would s. 15 work to argue for culture as an analogous ground?
  • Also be aware of the requirements of “fundamental justice” under s. 7 of the Charter — can challenge procedure if rights are infringed.
  • Administrative law and s. 7: right to be heard, right to notice, etc.
• Nickie Vlavianos picked up discussion of the Case Study at the approvals/licencing phase of oil and gas development process. Highlighted three critical points in the process: standing for a hearing before the EUB; requirements for intervener costs; and the public interest test applied by the EUB to approve projects.
• Comments and questions from the floor:
  • Nickie pointed to three points at which human rights arguments could perhaps be made in the decision-making process relating to oil and gas development in Alberta. She also attempted to clarify the meaning of “quasi-judicial” body and how that was not a bad thing as it imposed higher standards on the EUB. Again, some participants took issue with this description.
  • EUB has interpreted “rights” in the standing section of the Energy Resources Conservation Act (“ERCA”) as including only property rights and economic interests. So, those in the case study using the campground or staying at the retreat would likely not be able to trigger a hearing. Can s. 7 of the Charter be used to argue that these people have health rights that are affected and thus should have fair hearing?
  • Discussion of the “floodgates” argument that the government, or the EUB on behalf of government, might make — but evidence from some U.S. jurisdictions, where a broad right to clean environment has been granted through legislation, indicates that flooding of court process has not happened. Reality is that going before the EUB (and even more so before a court) is time-consuming, costly and difficult for those involved. Not a decision taken lightly.
  • Use of the word “rights” in the ERCA suggests room to make an argument that other rights are included. Different than word “interest in land” used in section dealing with intervener costs. Here it is more difficult to argue that rights, other than property rights, are included.
  • Issue of right to get some funding if health is impacted was raised – some criminal cases have said an accused has a right to state-funded counsel where life and liberty are at stake.
  • Discussion of the “public interest” test in the ERCA. List of factors to be considered; no priority amongst them. EUB has wide discretion to decide what the public interest is. Says it considers individual concerns in determining the public interest. Perhaps human rights are fundamentally incompatible with this type of public interest test. Can an argument be made that human rights are, by their nature, intended to protect the individual (or minority group) from the will of the majority – i.e., from the interest of the general public?
  • Question: How can a public interest test be reconciled with human rights law? Answer may lie in an approach similar to that in section 1 of the Charter – the idea that if government is to violate individual rights for the good of society, it must do so in the least intrusive way possible.

General Questions/Comments from the floor during Session 6

• How do you argue human rights issues in regard to cumulative environmental impacts?
• Where do human rights fit within a judge’s discretionary powers?
• All Boards are set up under legislation, therefore they must conform to the Charter. But not all administrative bodies can interpret the Charter since they are not mandated to determine questions of law. However, the EUB probably is so empowered. If EUB explicitly refuses to consider Charter issue, appeal on error of law - but EUB likely to dodge the issue altogether in its decision.
• Should property rights be strengthened? The Alberta Bill of Rights includes property rights.
• Mention made of unwritten constitution and other legal documents that might assist in constitutional interpretation – eg. the Magna Carta and the right to be judged by a jury of your peers and the right to be heard.
• Reference to Miller v. Energy Resources Conservation Board - Counsel did invoke the Charter before EUB, but to no avail. Supreme Court of Canada denied leave to appeal.
• Discussion of methods EUB uses to collect information. Suggestion that people giving evidence at hearings are not sworn in. That information is then used to make significant decisions about people’s lives.
• What is the possible use of the “precautionary” principle? Reference was made to the Shell Ferrier decision, where the sour gas well application was not granted. Good argument to have in your back pocket.
• Discussion of EUB’s authority to control its own process, but it is subject to the rules of natural justice, one of which is the right to be heard. If the EUB refused to respond to a Charter argument, there would be a right of appeal on an error of law.
• Discussion of the problems of proof/causation in environmental cases. What evidence would you need to establish an infringement of s. 7 of the Charter on environmental health grounds, for example? Difficulties because government often does not have baseline environmental information and doctors/scientists reluctant to testify due to scientific uncertainty or lack of clear data. Possibility of judicial notice of a rights violation in such cases when time is ripe and the will to recognize the health/environment interconnection has materialized? Can’t continue to avoid doing something about environmental problems simply because the science is uncertain or is subject to debate.

 

Session 7: Reflections on the Case Study

Richard Secord

• Agrees that the different wording in the standing and intervener costs provisions in the ERCA may make different arguments available under each. Believes it is doubtful that the EUB will address Charter arguments in its decisions.
• Just because a company gets a lease doesn’t mean that they have a right to extraction. If you want to advance human rights arguments, you have to attach yourself to a landowner, bring in expert evidence, etc. at your own cost.
• Public interest test in ERCA is big stumbling block. EUB does not have to be concerned with individual rights, but with the rights of all Albertans – the public interest. Would need extreme case to argue for individual human rights approach.
• Case of Shell Ferrier well was decided on a “public safety” issue. However, under the legislation, a new oil company could come in and re-apply for rights to drill in same geographical area.
• Suggestion that the EUB sees everything as an “engineering” problem — you just use more/better technology and prevent emissions. Threshold is whether the landowner would be killed, not “will the landowner suffer health problems from long-term exposure?”
• Oil wells are exempted from environmental assessment. Slant wells vent methane into the atmosphere, and venting has increased exponentially in Alberta.
• If human rights arguments were raised, the EUB would likely not address the arguments in its written decision. If not, hard to argue grounds for leave to appeal. And besides, a leave to appeal application is generally not a positive avenue to pursue. Alberta Court of Appeal is not interested in EUB issues.
• Ability to engage with aboriginal peoples may be fruitful as it would bring in the federal government.
• Other options include toxic tort suits for nuisance, negligence, invoking the Alberta Health Act and the Alberta Bill of Rights.

Sharon Venne

• The first thing Sharon noticed in the Case Study was the water — the river. It made her reflect on a recent World Bank Report that concludes that in 50 years the most valuable thing on earth will be clean drinking water.
• Criticism that the case study focused on human beings and their issues. It should have focused on the circle of life — animals, plants, humans.
• Human rights in Canada has focused on the individual, so collective rights are not protected. How do you protect collective rights?
• We need a shift in perspective. Who is the “public”? Who is the “public” that is protected or needs protecting? In Alberta, government protects oil and gas companies. How can the people (individuals) bring a case against the public?
• Charter does not explicitly incorporate the two international conventions (the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights) that were ratified before the Charter came into existence.
• Nevertheless, international bodies are applying increased pressure on the Canadian government to make progress in the aboriginal area. The Achilles heel of Canada is its indigenous peoples. The Federal Court of Canada decided in R. v. Sioux case that the government has a “duty to consult” with indigenous peoples.
• Indigenous peoples’ concern is whether there will be an environment left? They are participating in a process that jeopardizes their ability to maintain themselves.
• Need press coverage; need to maneuver groups so that they work together, not against one another.
• We should not devalue work done at the international level. Should learn to use the UN system more often.
• Know who you are up against and craft your arguments accordingly.

Michael Wenig

• Suggested that there is a difference between law in its specificity and law in its broader context.
• What makes a good environmental lawyer?
  • A good sense of timing — knows when to make a certain kind of argument.
  • A creative thinker — thinks outside the box.
  • Has the guts to advance new claims that others may scoff at.
  • A good story-teller.
• Claims in a new area move slowly — change in law is incremental.
• What is really the content of a right to a healthy environment? How do you go about balancing rights in this area?
• International law reveals the handwriting on the wall — keep arguing it to bolster domestic law.
• The Charter holds a lot of promise, but you have to look at specific context and specific kinds of claims. It will work best where the infringement (either procedural or substantive) is blatant. Examples:
  • Failure to give a hearing where required.
  • Lack of written reasons.
  • Burden of proof issue—who has it and should they have it?
  • No mechanism for monitoring.
  • Failure to consider cumulative effects.
• Look at the failure of the federal government to get involved:
  • Do they have a fiduciary duty in the specific case?
  • Often the federal government doesn’t want to get involved for political reasons and they claim they have no constitutional authority — can they be challenged on that ground?
  • What is a moral right? How can you play that out?
• It would help a community if they could respond with their own regional environmental plan when faced with proposals for oil and gas development. What will society as a whole do, if the oil companies do what the specific community wants them to do?

Roger Kerans

• First problem in terms of advancing new rights is finding it in the catalogue of rights – example, does right to “life” under section 7 of Charter include a right to health? Courts look to the penumbra of a right to see what is included or not, even if not specifically listed. Predicts that one day a court will say that Charter (likely section 7) protects the right to health.
• The courts in the last few years have been reluctant to extend the law. Has contributed to “Charter fright” amongst lawyers. Lawyers reluctant to make novel arguments. Lawyers specializing in Charter law outside of the criminal area are rare — reference to Joseph Arvay in Victoria as only lawyer practicing exclusively in the area of civil litigation and the Charter.
• Importance of case of Vriend highlighted – is underused.  Case justifies using the Charter as a sword - imposing a positive duty on the government to act.
• Referred to a recent case in England: Marcek v. Thames [English Court of Appeal, February, 2002]. An individual has a right to a home and family life under the European Human Rights Convention. Court held this right was violated by odours that emanated from Thames river.
• Discussed issue of independent tribunals — reference to a book called The New Despotism. Accountability can be a real issue. The idea was that independent tribunals would prevent corruption, but instead we get institutional bias.
• Problem of human rights law focusing on the individual, rather than environment generally. Human self-interest is what got us in this mess in the first place. Perhaps we need a more “enlightened self-interest” vantage point.

 

Luncheon Speaker: Nettie Wiebe

• Suggested that farmers and ranchers do have a distinctive culture/way of life that should be recognized and valued.
• This culture is not better or worse than any other, but, like all cultures, deserves protection for the maintenance of cultural diversity. Cultural diversity enhances all of our lives and makes for a richer society. It is fundamentally tied to the diversity of life on this earth.

Session 8: Suggestions for Change

Elaine Hughes

• Discussed legal avenue adopted in some jurisdictions of enacting legislation that sets out an environmental bill of rights. This has been done in the Yukon, NWT, and Ontario, but not yet in Alberta.
• Concluded that, with the exception of Yukon’s legislation, these bills of rights guarantee certain procedural rights (e.g., access to information about governmental decision-making in regard to the environment). Only Yukon’s legislation contains a substantive right to a healthy environment, but no cases yet on this provision. As well, the Yukon Act does not set out a remedy for the violation of this right. In addition, the Act provides a full defence if the company was acting under the authority of a licence or permit.
• Discussion after presentation suggested that, although such bills of rights may not be a complete answer to environmental health concerns, they are at least one legal option worth pursuing.

David Corry

• Discussed the problem of human rights abuses by multinational oil and gas companies operating abroad – in Africa in particular.
• Suggested that corporate codes of ethical conduct have an important role to play in curbing these abuses. In particular, the United Nations has put together a Global Compact that some Canadian companies have signed on to. David encouraged other companies to commit themselves to this Compact and to corporate social responsibility generally.

Sandy Laing

• Discussed some of the measures BP Canada Energy Company has taken to ensure its operations are conducted in a safe and environmentally responsible manner. For example, BP has reduced greenhouse gas emissions below the Kyoto 1990 target by 10% and aims to reduce by another 10-15% in the next decade. BP is using cleaner fuels and no longer flares any gas – its policy is to recapture all of this gas. This practice has actually resulted in a net gain to the company in terms of profits.
• BP is interested in renewable energy and is making significant investment in these areas, particularly solar and hydrogen alternatives. BP also makes every effort to minimize disturbance to the natural landscape when it conducts its operations. In one case, the surface topography was restored to its exact condition prior to the installation of a pipeline.
• As with all companies, BP wants to know what the rules are and how to follow them – importance of certainty and predictability. BP believes in and encourages early consultation and mutual compromise.
• Frustration expressed by some audience members that the oil and gas industry is not doing enough, or is perhaps dealing with aesthetic or cosmetic solutions. From the surface all may look fine, but there still may be contamination that is affecting people’s health.

Ciaran O’Faircheallaigh

• Suggested that the Workshop has focused primarily on government and what it has or has not done. Ciaran asks: what about the companies? Can private agreements negotiated with companies be used as an alternative to rights claims?
• Ciaran described his research project in Australia, which involves a comparison of the policies of 10 mining/gas companies with respect to Aboriginal issues/rights and their implementation. There are wide variations in company attitudes -- some are willing to go beyond what the law requires of them while others are not.
• Aboriginal groups in Australia have been exploring option of entering into private agreements with companies for the benefit of aboriginal peoples. Idea of incorporating human rights standards into private agreements (with international human rights law providing needed legal support), rather than focusing on the government as the only avenue for redress.

Concluding Session: Looking Forward

Gary Dickson

• Suggested that current state of human rights law in the area of health and cultural impacts from resource development has led some of us to vacillate between hope and despair over the past two days. But there are signs of change.
• One reason may come because of our growing concern about escalating health care costs – so prevention becomes more important. Once the links between the environment and human health are more clearly established and accepted, more stringent laws may be passed to prevent escalating medical costs.
• Reminded us of the importance of political pressure and public opinion for pushing change.
• Suggested that Alberta’s Freedom of Information and Privacy Act may provide some assistance in an appropriate case. Section 32 (“public interest override”) gives access to information where there is a public or environmental risk.
• Reminded us that human rights are always evolving.

Final comments from the floor

One participant stated her frustration that farmers were not represented on any of the panels during the Workshop. She suggested that the farmers were expected to be in the audience, to be listeners.

Overall comments suggested that the Workshop raised some important issues and provided a forum for divergent views to be expressed. It is only a start, however, and much work remains.