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Northern Gateway Decision a Huge Victory for First Nations' Rights

Government failed to consult despite clear past rulings, but pipeline not dead yet.

By Judith Sayers 1 Jul 2016 | TheTyee.ca

Judith Sayers (Kekinusuqs) is from the Hupacasath First Nation in Port Alberni, B.C., and a lawyer. She also holds an honorary Doctor of Laws from Queen's University.

It is a great day for the Haida, Haisla, Gitxaala, Gitga'at, Kitasoo Xai'xais, Heiltsuk, Nadleh Whut'en and Nak'azdli Whut'en Nations as they celebrate the Federal Court of Appeal decision to quash cabinet approval for Enbridge's Northern Gateway project.

The authority to build Northern Gateway no longer exists. I am sure those First Nations communities are celebrating, singing and dancing and rejoicing that their lands, waters and resources will remain intact for the next little while, with great hope that it will be forever. Northern Gateway project is on hold for now.

Why did the court quash the federal cabinet authorization for Northern Gateway's pipeline project? Simply put, the First Nations were not properly consulted. This is what they have been saying all along, and now the Federal Court of Appeal has agreed with them.

Does the quashing of cabinet's decision send chills down developers' spines? It should. It signals that the government did not do its job when it consulted with First Nations. It shows that the cabinet did not do its job by determining whether consultation had been carried out properly before approving the project. It also tells developers that although they don't have the duty to consult, the more they do to meet First Nations' concerns, the better off they will be when governments don't fulfill their duties.

Why did the court throw out the authorization for Northern Gateway, which was to carry bitumen from the Alberta tar sands to Kitimat, where it would be loaded in tankers? At paragraph 325 the court describes what consultation was done with First Nations as "brief, hurried and inadequate" and notes the "inadequacies were more than mere imperfections." The government "left entire subjects of central interest to affected First Nations including issues of subsistence and well-being entirely ignored," the court found.

There was strong criticism from the court on the consultation process that did take place. Even more tellingly, the court condemned the Report of the Joint Review Panel set up by the federal government, finding it left some pipeline impacts undisclosed, undiscussed and unconsidered. Good reasons to quash the authorization.

So what happens next? The court directed that Canada go back and redo its Phase IV consultations with First Nations before it makes re-determination decision on the project.

Not really dead, yet

That means Enbridge's Northern Gateway Project is not really dead, it is on hold while the government does the job it should have done the first time round with First Nations.

Interestingly, the court said, "It would have taken Canada little time and little organizational effort to engage in meaningful dialogue on these and other subjects of prime importance to Aboriginal peoples. But this did not happen." Sounds like another example of the arrogance of Harper's government.

What does this court decision tell other project proponents? It tells them that they have to take First Nations concerns more seriously. That if the First Nations say they have not been consulted properly, the developers need to go back to the governments and inquire as to the adequacy of the consultation, and not just proceed as if that is their right. If they don't take the need for consultation seriously, they are subject to court cases, costly delays and uncertainty.

What does this tell the governments? That consultation must be done properly, as it is their fiduciary duty. There have been many court cases that have given governments sufficient guidance on how to consult. The courts have been clear that every concern of First Nations must be addressed and not set aside and ignored as was done in this case.

The Federal Court of Appeal also added more advice on how the Canadian government should consult. It starts with "empowering their officials to dialogue on all subjects of genuine interest to affected First Nations. To exchange information freely, and candidly, to provide explanation and to complete their task to the level of reasonable fulfillment."

None of this is new. It has been said by many courts before. So why didn't the government do this? Were they in too much of a hurry to approve Northern Gateway? Were they more supportive of industry than protecting First Nations' rights? Were they just too arrogant in thinking First Nations would just accept their decisions?

I am sure it was all or some of these things. It was a Harper government decision that is now in the hands of the Trudeau government to fix.

While First Nations celebrate, the governments and industry are looking at a hard lesson learned. Proper consultation is key to building good relations with First Nations. Inadequate or non-existent consultations affect the economy as proponents decide whether they want to invest in Canada if their authorizations for projects can later be quashed.

While consultations take place again on Enbridge's Northern Gateway, I hope that First Nations concerns will be taken seriously, and that maybe Northern Gateway will not see the light of day.  [Tyee]

Read more: Indigenous Affairs

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