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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."

Haisla representatives would make that point over and over again in a long series of letters to government decision-makers. By 2009, their exasperation was obvious.  

"You have received our comments and made unilateral adjustments to your process," reads a December letter to the Canadian Environmental Assessment Agency (CEAA). "This is a one way street approach to consultation that brings to mind the old adage: 'Man proposes, God Disposes.'"

The federal government, meanwhile, insisted it was taking its duty to consult with First Nations as seriously as it could.

"Numerous comments and suggestions were received from Aboriginal groups," the CEAA wrote to Saik'uz Chief Jaqueline Thomas in November 2009, "Each comment and proposal... has been carefully considered."

Then one month later, in December, the feds made their consultation strategy for Northern Gateway official.

First Nations would present directly to a three-person Joint Review Panel. That panel would factor their concerns into its final decision on Gateway. Any outstanding issues around rights and title could be addressed by the government after the panel adjourned. And in the meantime, those concerns could be handled by a Crown consultation coordinator.

Feds defend Joint Review Panel

"The [Joint Review Panel] process has proven to be an effective means... to consider broad societal concerns, including those of Aboriginal groups," CEAA spokesperson Isabelle Perrault wrote in an email to The Tyee.

But was it all enough to meet the government's legal obligations?

"I think its very likely this whole thing will end up in Supreme Court," Robert Janes, a lawyer representing the Gitxaala First Nation and one of Canada's top practitioners of aboriginal law, told The Tyee. 

Detractors of the federal government's approach see things as follows: The Joint Review Panel has no legal power to render decisions on aboriginal right and title. Consultation after the panel adjourns makes a mockery of the 2005 Mikisew decision and others. And the Crown consultation coordinator lacks negotiating authority. 

These might seem like arcane legal points, but the very fate of Northern Gateway may be resting upon them.

"The practical reality is that these projects depend upon timely approvals," Janes said. "The kind of delay that would come from a consultation court case could be devastating."

This isn't the only legal fault line First Nations are observing.

FNs slam Enbridge consultation record

To help meet its duty to consult, the federal government is also relying "upon the consultation effort of the proponent," in this case being Enbridge. 

Those words come direct from the government's own Joint Review Panel Agreement for Northern Gateway. And its Aboriginal Consultation Framework gives some indication of how it'll all work.

Not only will Enbridge's "Aboriginal engagement activities" help "supplement the Crown record," but the government's consultation coordinator will "liaise with the proponent to gain information." 

Yet if the experiences of the Office of the Wet'suwet'en are at all typical, the entire process could be questionable.

"In terms of Enbridge's effectiveness at achieving any sort of consultation, it would be a zero out of 10," the group's natural resources manager, David DeWitt, told The Tyee.

DeWitt chronicled his frustrations in a letter to the Joint Review Panel last August, particularly the fact that Enbridge's outreach team had been overhauled several times during negotiations.

"When the new team took over, we were surprised at how little they seemed to know about the previous team's meetings," he wrote. "We began to wonder whether the previous team had taken proper, if any, notes. We still don't know whether they did."

Enbridge spokesperson Paul Stanway had this to say in response to The Tyee's repeated interview requests: "Very busy at the moment with the JRP hearings."

Did Oliver letter hurt pipeline chances?

The day before those Joint Review Panel hearings began came federal Natural Resource Minister Joe Oliver's infamous "open letter" to Canadians, the one where he attacked the "environmental and other radical groups" attempting to "hijack our regulatory system."

Though Oliver didn't mention Northern Gateway explicitly, the implication wasn't exactly subtle. 

Much media attention focussed on whether his comments would prejudice the supposedly neutral Joint Review Panel.

But the more interesting question, according to one Vancouver-based attorney who specializes in aboriginal law, is whether Oliver's comments undermine Canada's legal duty to consult with First Nations.

"On its face, this looks inconsistent with the requirement that the Crown proceeds with an open mind," Michael Lee Ross told The Tyee. "It does suggest the process has already been predetermined."

(Vancouver-based attorney Janes called Oliver's comments "incredibly ill-advised.")

Whether the Canadian courts would agree is unclear, Ross said, and no native group, with the exception of the Carrier-Sekani Tribal Council in 2006, has yet filed litigation against the government.

Still, Nigel Bankes, chair of natural resources law at the University of Calgary, "would be stunned if an environmental group or First Nation didn't have a go at it."

'New era' of Aboriginal influence

None of B.C.'s aboriginal groups have the authority to outright veto Northern Gateway, or any other development project, on their traditional territories, he said. 

A more likely scenario, assuming there was legal basis for a Supreme Court consultation challenge, is that years of procedural delays would eventually take their toll. 

"By then you've got alternatives like expanding capacity on Kinder Morgan's pipeline [from Alberta to Vancouver]," Bankes said.

How this all turns out ultimately depends on a multitude of legal and economic factors, many difficult to predict. 

But the quality of Canada's First Nations consultation on Northern Gateway may have much bigger consequences than the fate of one steel pipeline.

"It's a very important case," Peter Russell, a constitutional expert at the University of Toronto, told The Tyee. "We're very much still coming out of the old imperial era of aboriginal relations... In a way, what will happen here is a test of what goes on in this new era and how well the interests of aboriginal peoples are protected." 

More than a year of public hearings on Northern Gateway continue throughout B.C. and Alberta.

Tomorrow: Christopher Pollon reports on whether customer commitments required to make Northern Gateway pay off are firm and in place.

[Tags: Energy, Rights and Justice, Politics.]  [Tyee]

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