March 19, 2018
'Tyranny of small decisions' infringes on Indigenous rights
More than 30 years ago, renowned biologist William Odum described the process of cumulative environmental degradation as 鈥渢he tyranny of small decisions.鈥 Today, law professors Martin Olszynski and Robert Hamilton are applying this insight to a new research project examining the cumulative effects of resource development on Indigenous rights, including treaty rights to hunt, fish, and trap, that are protected under Canada鈥檚 Constitution. 聽
Courts inconsistent in treatment of concerns
Their project, 鈥淧reventing Piecemeal Infringement of Aboriginal and Treaty Rights: A Duty to Assess and Manage Cumulative Effects?鈥, will examine how courts are currently addressing First Nations鈥 concerns about the impacts of not just individual projects, but also the cumulative effects of multiple projects on the landscape.
According to Hamilton, several First Nations are currently alleging that unconstrained resource development is affecting their ability to hunt, trap, and fish in their traditional territories. But, he says, 鈥渢o date, Canadian courts have been inconsistent in their treatment of such concerns. While a few decisions suggest some understanding of the mechanics of such harm, others are dismissive, forcing First Nations into complex, time-consuming, and costly litigation to prove actual harm.鈥
Regulatory systems focus on individual projects, needs to change
Olszynski and Hamilton think that part of the problem may be courts鈥 inability to look beyond Canada鈥檚 current regulatory systems, which are still very much focused on assessing individual projects one at a time. 鈥淭he current law on governments鈥 Indigenous Peoples is rooted in that context, and appears to be constrained by it,鈥 says Hamilton. A related problem, according to Olszynski, is that 鈥渢he federal government and most provincial governments have either failed or refused to implement systems for assessing and managing cumulative effects.鈥
Recognizing that the result is to allow the piecemeal infringement of Indigenous Peoples鈥 rights, Olszynski and Hamilton say it may be time for the courts to recognize that current systems, with their project-by-project focus, are constitutionally deficient, and to require governments to take the task of assessing and managing cumulative effects more seriously. 聽聽
Olszynski and Hamilton received a $10,000 research grant from the to complete their project.
Related reading:
鈥,鈥 Times Colonist, January 17, 2018
Interested in learning more? Join a panel discussi辞苍听presented by 草莓污视频导航鈥檚聽,听辞苍听, an Indigenous Awareness Week event on March 21 at 5 p.m.
The 草莓污视频导航 unveiled its Indigenous Strategy,听, on Nov. 16, 2017. The strategy is the result of nearly two years of community dialogue and campus engagement, and involved the work of a number of people from the university, Indigenous communities and community stakeholders. Recommendations from the strategy are being implemented as we move forward with promise, hope and caring for the future