How First Nations Are Gearing Up for Legal Battle Against Gateway

Native groups likely to cite evidence they weren't consulted as required by Supreme Court decisions.

By Geoff Dembicki 30 Jan 2012 |

Geoff Dembicki reports on energy and climate issues for The Tyee.

On Sept. 28, 2011, Enbridge appears to have made an extraordinary offer of peace to several of its most dedicated opponents. 

The scene was a Coastal First Nations board meeting on Granville Street in downtown Vancouver. That alliance of native communities nestled in coves and inlets along B.C.'s jagged north coast had agreed to host Enbridge CEO Pat Daniel and three other senior company officials. 

Relations between the Calgary-based pipeline giant and Coastal First Nations leaders were not exactly warm.

The specter of an oil spill by one of the hundreds of oil sands-laden supertankers Enbridge proposed sending past native villages each year posed a dangerous threat, in the view of the aboriginal leaders, to the natural landscape their peoples had called home for hundreds of years. 

Add to that Enbridge's largely failed effort to entice B.C. First Nations support, a process fraught with errors and missteps

"I want to undertake a fresh start," CEO Daniel told native leaders at the Vancouver board meeting, according to official minutes. "Enbridge has been well-intentioned but came at it from the wrong point of view... trying to promote the benefits [of Northern Gateway] and not enough time listening."

Coastal First Nations president Art Sterritt was adamant a "clean slate" could only be attempted on one condition: "You would have to ask the Joint Review Panel to step down, and then we could sit down and discuss." 

That panel was set up by the federal government to lead public hearings on Northern Gateway, the 1,172 kilometre steel pipeline from Alberta's oil sands to coastal Kitimat. Daniel said he'd look into it, according to a notice of motion filed by Sterritt with the Joint Review Panel.

But less than a month later, that same document reads, "Mr. Daniel informed the [Coastal First Nations] that his backers," which include China's Sinopec and several major Alberta oil sands producers, "were unwilling to stop the process." 

A company spokesperson has refused to confirm whether any of these exchanges took place. What's clear though, is that Enbridge, and with it, Prime Minister Stephen Harper's Conservative government, face something much bigger than a simple public relations failure.

Revealed in the standoff with First Nations are legal fault lines potentially stretching all the way to Canada's Supreme Court. Even non-native analysts predict Northern Gateway is likely to become a test case for what level of consultation with First Nations is required by previous Supreme Court decisions. Arriving at that answer -- whatever it turns out to be -- may take so long that the sheer passage of time cripples the effort to finance and construct the proposed link between Alberta's oil sands and Kitimat's port on the northwest coast of B.C.

'A foundation of mud'

Through the sixth floor window of Allan Donovan's Gastown office, there's a panoramic view of Burrard Inlet's bright orange dock cranes and lone tanker ships sailing past. Across the water, North Shore apartment towers are humbled by the snow-covered mountains high above.

"The whole vista out this window was built on a foundation of mud," Donovan explains, gesturing with an outstretched right hand. 

Donovan is an attorney specializing in aboriginal law. For over 20 years, he's helped defend Haisla Nation land rights against the encroachments of big business and government.

Few native groups, in his opinion, exemplify the legal and environmental tensions of Northern Gateway better.

The Haisla community of Kitimaat Village lies right near the mouth of Kitimat River, terminus point for Enbridge's proposed pipeline, and alongside Douglas Channel, where supertankers would begin their journeys to Asia and elsewhere.

Enbridge wants to build a tank farm and terminal site nearby, in forest Haisla peoples have used for thousands of years, and land they never ceded to the provincial or federal government. 

A true "foundation of mud" as Donovan sees it.

Until only a few decades ago, neither government (known in legal terms as the "Crown") was under much obligation to take the Haisla's, or any other First Nation's, unsettled land claims seriously.

Canada entered a whole new era with the Constitution Act of 1982, whose Section 35 affirmed "existing aboriginal and treaty rights."

Governments at first tended to take a narrow view of this clause, arguing it referred only to fishing, hunting and other traditional activities -- not to any legitimate land claims. 

Then, in 1997, the Supreme Court of Canada's landmark Delgamuukw decision blew that interpretation to pieces.

First Nations in B.C. had never surrendered title to their traditional territories, it affirmed. And so the Crown now must consult meaningfully with native communities any time development stood to impact those lands. 

The Supreme Court of Canada went further still in 2004 with its Haida and Taku River Tlingit decisions. 

These two landmarks enshrined the government's duty to consult and accommodate, even when dealing with First Nations who hadn't yet proven land ownership through treaties or in the courts.

Neither decision gave those First Nations a final veto over development projects. 

But the Crown now had to prove it had listened carefully to native concerns, and where possible incorporated them into its planning, before shovels hit the ground.

Which is all very encouraging, Donovan said, leaning back in his chair. Except that for Northern Gateway, the federal government seems to have forgotten any of this case law exists.

"Their approach so far has been woefully inadequate," he said. "They haven't indicated that they're taking the process of consultation seriously."

Feeling ignored

The Haisla Nation claims it has been making serious and repeated efforts to engage the federal government and Enbridge since 2005.

"For millennia," Donovan wrote at the time to various federal and provincial ministers, "the Haisla people have relied on the natural resources of their Territory" -- oolichan, coho salmon, cedar bark, huckleberries -- "for both sustenance and trade."

Haisla leaders had participated in B.C.'s Treaty Negotiations Process for the past 11 years. They believed they had strong evidence to prove the land Enbridge wanted for its tanker farm, terminal site and a large swathe of pipeline rightfully belonged to their peoples. 

So the leadership requested, in Donovan's 2005 letter, a meeting with senior government decision-makers "to address this important issue in a constructive and cooperative way." 

Not only did that meeting never happen, but in 2006, then-Canadian environment minister Rona Ambrose made an important announcement about Northern Gateway that showed scant signs of native input.

The project, Ambrose said that September, would be assessed by a federally-appointed Joint Review Panel.

This was strongly opposed by B.C.'s Carrier-Sekani Tribal Council, who argued the panel had no legal authority to settle unresolved native land claims, particularly on territory crossed by the pipeline. 

That group and others had been pushing for a separate review process, one explicitly set up to address aboriginal right and title.

And so in October, the Carrier-Sekani leadership followed through on legal threats it had been making for months, and filed a lawsuit against the federal government. 

"The Courts have been clear that First Nations can no longer be ignored in this way," Carrier-Sekani Tribal Chief David Luggi declared. "We are challenging the Minister's decision."

Enbridge effectively ended the matter in November, by announcing it would delay Northern Gateway by up to four years, fast-tracking a new pipeline into the U.S. Midwest instead.

Still, none of the legal issues had been resolved. 

What the federal government had signalled, in aboriginal opinion, by setting up a joint review panel for Northern Gateway without considering any alternatives, was that it didn't really care about the unique concerns of First Nations.  

And so if the government was willing to trample over them at this early stage, Carrier-Sekani leaders argued, how could decision-makers later be trusted to protect their people's constitutional rights?  

The Supreme Court of Canada had posed a similar question the year before. 

In his precedent-setting 2005 Mikisew decision, Justice Binnie affirmed two important duties: One, that the Crown must consult with affected First Nations at the earliest stages of development. And two, the results of that effort must be factored into government planning.

As Binnie famously declared, consultation is not just an opportunity for natives "to blow off steam before the Minister proceeds to do what she intended to do all along."

More invitations from the Haisla 

By 2008, however, with Enbridge once again pushing Northern Gateway and the federal government again supporting a Joint Review Panel process, First Nations wondered what lessons, if any, decision-makers had learned from Mikisew.

The Haisla Nation took this opportunity to write once more to the B.C. and federal governments.

Any attempt to appoint a Joint Review Panel "without adequate consideration of our views," Chief Councillor Ellis Ross warned that August, would be an "unjustified infringement of Haisla Nation aboriginal rights and title."

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