First Nations and the Supreme Court v. Enbridge and the Harper Government

With the debate over the Northern Gateway pipeline proposal heating up in Ottawa, and the likely scenario of some sort legal battle emerging, it might be time to look what the law, and in particular the Supreme Court, has said about aboriginal land claims in the past to see if we can better predict the outcome of any trial on this contentious subject.

Harper and his oil business cronies probably would have preferred that the Northern Gateway project fly under the radar, but his loudmouthed Minister of Natural Resources Joe Oliver didn’t get the PM’s memo, evidently. Tasked with the unenviable job of trying to greenwash the tar sands for sale in the U.S. and elsewhere, Oliver is ratcheting up the us-versus-them rhetoric in the wake of the recent delay to construction of the Keystone XL pipeline due to Obama’s controversial decision to withhold permission. Reeling from this setback, and the prospect of the same thing happening to their latest pipeline dream, Oliver made the now infamous remark that Canada’s economic interests were being threatened by “environmental groups and other radical groups…attempting to hijack our regulatory system!”

Luckily, no one in their right mind is buying what Oliver is selling, least of all first nation groups for whom the pipeline could have a massively negative impact on their traditional lands, most disturbingly at the location where the pipeline ends in Kitimat BC, which happens to be in the heart of one of the world’s most sacred and delicate ecosystems, the Great Bear rainforest.

The government maintains that it has been in consultation with First Nations through the Joint Panel Review, set up by the feds back in 2006. But is this enough? Most experts on aboriginal law in the context of Supreme Court rulings related to section 35 of the Charter of Rights and Freedoms (affirming “existing aboriginal treaty rights”) are deeply skeptical that the government has done its constitutional duty to involve First Nations in this process from the start.

This duty basically stems from two key precedents in Canadian law: Mikisew (2005) and Delgamuukw (1998). Before the latter decision was used by the court to assert the legitimacy of native sovereignty over their own land, governments tended to try and minimize the importance of those claims by pretending that native communities only exercised their rights in relation to hunting, fishing and various other traditional activities.

The former is perhaps even more significant in its implications for the proposed pipeline. In his opinion, Justice Binnie laid down a twofold obligation on the part of the government: 1) the crown ( i.e. the feds) must be in consultation with affected First Nations at the earliest stages of development. 2) The results of that consultation must be factored into the planning of the project in question.

Two pieces of evidence belie the feds’ position, in light of the cases I just mentioned. The leadership of the Haisla people, who historically occupied the land where the tanker farm would be built, had not only been denied a meeting with the relevant ministers in ’05, but when then environment minister Rona Ambrose made her first public statement about the project in ’06, it contained virtually no mention of their concerns. Furthermore, the Joint Review Panel seems to be a toothless government public relations tool with no legal powers to decide aboriginal title or land claims. Not to mention that the Crown chief representative lacks negotiating authority.

Another potential legal issue raised by the Harper governments mishandling of this matter is the question of Joe Oliver’s now infamous letter. Aboriginal legal experts say it could be used as evidence that the crown is not negotiating with First Nations in good faith. According to Michael Lee Ross: “On its face, this looks inconsistent with the requirement that the Crown proceeds with an open mind. It does suggest the process has already been predetermined.” Hardly surprising that the Carrier-Sekani nation have filed a lawsuit against the project.

However, despite this duty to consult, it’s important to remember that, by virtue of the archaic Indian Act, First Nations still don’t have the power to veto development projects on their lands. Ultimately, the best that the communities involved in this battle can hope for is that by raising awareness about the harmful consequences to environment, local enconomy and their people, the combination of negative publicity generated and legal red tape created will cause Enbridge to back down from their controversial plan.

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