Gateway fight a nation builder for First Nations
Approving Enbridge’s Northern Gateway pipeline subject to conditions is a classic case of the Harper government trying to avoid a problem of its own making.
Prime Minister Stephen Harper has failed repeatedly to include the federal government in an active role in the pipeline negotiations, leaving it up to the company instead. This will prove to be a fatal mistake, because private corporations aren’t equipped to settle constitutional issues.
The First Nations in British Columbia don’t have any treaties or formalized relationship with the Crown. The title to most of the province still remains in the hands of the First Nations. This is a part of unfinished constitutional and treaty business that must be dealt with before a major resource project such as a pipeline is allowed to proceed.
Now, before I get too far into this, I have to state that I am a member of my reserve’s economic board, and I am also a treaty land entitlement (TLE) trustee. We have deliberately sought out land with oil and gas potential, and so far have drilled 10 wells, with four more planned for this summer.
I am not against development, but I am opposed to governments and corporations running roughshod over First Nations’ rights and ignoring the important role that our people can and should have in this country.
As well, the environmental concerns of the Gateway pipeline are immense, and an oil spill or tanker accident could create an environmental catastrophe.
The First Nations who press their concerns are on solid legal ground. A growing body of legal cases and precedents over the past 50 years continues to strengthen their case.
Under the Royal Proclamation of 1763, the responsibility to make treaty with the First Nations rests with the Crown. The Royal Proclamation has never been repealed in Canada, so it remains in force.
Adding to the proclamation is the British North America Act, which clearly stated that First Nations are a federal responsibility. When you attach Sec. 35 of the Constitution Act that affirms existing treaty and aboriginal rights, you see that First Nations are clearly a federal responsibility and dealing with their rights is not up to the provinces or corporations.
The Supreme Court of Canada in 1997 released a landmark decision known as Delgamuukw. It involved the case taken forward by hereditary chiefs of the Gitxsan and Wet’suwet’en Nations, who claimed the right to aboriginal title and self-government. Part of the proposed Gateway pipeline will run through the traditional territory of the Gitxsan and Wet’suwet’en nations.
In its historic decision, the high court stated that aboriginal title exists in B.C., and that it includes the right to the land itself. The ruling was a turning point in treaty negotiations.
The Supreme Court in 2004 released its Haida and Taku River decisions, with the Mikisew Cree decision following in 2005, that said the Crown has a duty to consult and, where appropriate, accommodate First Nations.
This must be taken seriously. A corporation or government body can’t simply go to a First Nation and say, “We are going ahead with this project. Are you in or out?” Nor can First Nations be treated simply as another interest group at public hearings. First Nations must be engaged in a meaningful government-togovernment dialogue.
The duty to consult is grounded in the concept of “honour of the Crown.” This concept is fundamental to agreements made with First Nations. The honour of the Crown must be protected in all ways because treaties are made in the name of the sovereign, and the negotiations and agreed settlement must be conducted honourably.
The court also ruled that in order to protect the honour of the Crown, the treaty interpretation must be in the favour of the First Nations in cases where there’s ambiguity.
Even before addressing the plethora of environmental concerns, the government has to gain title to the land by negotiating a treaty relationship with the First Nations and conduct meaningful consultations. The First Nations are prepared to flood the courts with lawsuits that will stop the pipeline in its tracks.
The Harper government has refused to take the First Nations’ legal position seriously. Surely, someone in government has advised the Conservative politicians that there is a strong body of constitutional and case law that favour the First Nations. If they received the advice, it seems to have fallen on deaf ears.
Proponents of the pipeline call its construction a nation builder that harks back to the construction of the railroads in the 1800s. But the way things are headed, the threat of the pipeline being built is really a nation builder for First Nations.
This issue is making our people politically aware, and they are getting involved. It has the potential to become a national movement that will show the rest of Canada the political and legal clout First Nations have in Canada.