March 19, 2018

'Tyranny of small decisions' infringes on Indigenous rights

Law professors research cumulative effect of resource development on constitutional rights
Professors Martin Olszynski, left, and Robert Hamilton received a $10,000 grant from the Foundation for Legal Research for their project Preventing Piecemeal Infringement of Aboriginal and Treaty Rights: A Duty to Assess and Manage Cumulative Effects?

Martin Olszynski, left, and Robert Hamilton received a $10,000 grant for their project.

More than 30 years ago, renowned biologist William Odum described the process of cumulative environmental degradation as “the tyranny of small decisions.” 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’s Constitution.  

Courts inconsistent in treatment of concerns

Their project, “Preventing Piecemeal Infringement of Aboriginal and Treaty Rights: A Duty to Assess and Manage Cumulative Effects?”, will examine how courts are currently addressing First Nations’ 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, “to 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.”

Regulatory systems focus on individual projects, needs to change

Olszynski and Hamilton think that part of the problem may be courts’ inability to look beyond Canada’s current regulatory systems, which are still very much focused on assessing individual projects one at a time. “The current law on governments’ duty to consult Indigenous Peoples is rooted in that context, and appears to be constrained by it,” says Hamilton. A related problem, according to Olszynski, is that “the federal government and most provincial governments have either failed or refused to implement systems for assessing and managing cumulative effects.”

Recognizing that the result is to allow the piecemeal infringement of Indigenous Peoples’ 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.   

Olszynski and Hamilton received a $10,000 research grant from the Foundation for Legal Research to complete their project.

The University of Calgary unveiled its Indigenous Strategy, ii' taa' poh' to' p, 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