Indige­nous peo­ples can’t veto pipe­lines

Good news for pro­po­nents of oil, gas pipe­lines, such as con­tro­ver­sial Kin­der Morgan

The Guardian (Charlottetown) - - OPINION - Thomas Walkom Thomas Walkom is a na­tional af­fairs writer for Torstar Syn­di­ca­tion Ser­vices

The Supreme Court has con­firmed that Indige­nous na­tions do not have the right to veto re­source devel­op­ment projects. This is the up­shot of two sep­a­rate rul­ings re­leased Wed­nes­day.

That is good news for pro­po­nents of oil and gas pipe­lines, such as the con­tro­ver­sial Kin­der Morgan pro­ject in Bri­tish Columbia.

It is bad news for those who had hoped that Indige­nous re­sis­tance would be suf­fi­cient to de­rail such projects, in­clud­ing pipe­lines de­signed to move heavy oil from Al­berta to tide­wa­ter.

The two de­ci­sions are par­tic­u­larly im­por­tant in that they pro­vide a road map for re­source com­pa­nies and their reg­u­la­tors on how to or­ga­nize pro­posed projects in a way that passes le­gal muster.

At the heart of this is the fact treaties signed be­tween Indige­nous na­tions and the Crown are part of Canada’s con­sti­tu­tion. The courts have long held that this alone re­quires the gov­ern­ment to con­sult with First Na­tions be­fore au­tho­riz­ing projects that could af­fect treaty rights.

What hasn’t been en­tirely clear is what con­sul­ta­tion re­quires. Is it a weak re­quire­ment that means Indige­nous views, like those of en­vi­ron­men­tal­ists, must be taken into ac­count by gov­ern­ment be­fore a fi­nal de­ci­sion is made?

Or is it a strong re­quire­ment that means af­fected Indige­nous na­tions must give their con­sent be­fore a re­source pro­ject such as a pipe­line can go ahead?

This week, the top court, came down firmly against the lat­ter in­ter­pre­ta­tion.

“The duty to con­sult does not pro­vide Indige­nous groups with a ‘veto’ over fi­nal Crown de­ci­sions,” the court ruled in a case that pit­ted pipe­line gi­ant En­bridge against the Lon­don-area Chippe­was of the Thames First Na­tion.

And while Indige­nous peo­ples may have a “special pub­lic in­ter­est,” the judg­ment reads, in the end that in­ter­est must be bal­anced against other com­pet­ing so­ci­etal needs.

Put sim­ply: Indige­nous in­ter­ests don’t au­to­mat­i­cally trump all oth­ers.

This week’s rul­ings fo­cused on two rad­i­cally dif­fer­ent cases. In one, cen­tred around the tiny Inuit com­mu­nity of Clyde River, Nu­navut, the court said the Crown, in the form of the Na­tional En­ergy Board (NEB), did just about ev­ery­thing wrong.

In the other, fea­tur­ing the Chippe­was of the Thames, the court found that the NEB did just about ev­ery­thing right.

For Clyde River, the is­sue was seis­mic test­ing. Oil ex­plo­ration com­pa­nies wanted to set off sonic ex­plo­sions in the Arc­tic Ocean near the ham­let in an at­tempt to lo­cate un­der­sea pe­tro­leum de­posits.

The lo­cal Inuit ar­gued that this would spook the whales, seals and po­lar bears the com­mu­nity hunted.

At one point, they re­port­edly asked for $10 mil­lion in com­pen­sa­tion. The com­pa­nies de­clined.

The en­tire is­sue went be­fore an NEB panel, which es­sen­tially ap­proved the seis­mic test­ing scheme.

But the court ruled that in do­ing so, the NEB failed to ad­e­quately con­sult the Inuit. It didn’t hold oral hear­ings nor did it pro­vide the lo­cal com­mu­nity with fund­ing that would al­low it to in­ter­vene ef­fec­tively.

As well, it made no ob­jec­tion when the com­pa­nies, in re­sponse to Inuit ques­tions, replied with a 3,926-page on­line doc­u­ment writ­ten al­most en­tirely in English.

This in a com­mu­nity where most spoke only Inuk­ti­tut and where in­ter­net ac­cess was rudi­men­tary.

The court ruled that none of this con­sti­tuted ad­e­quate con­sul­ta­tion and over­turned the NEB ap­proval.

In the ar­guably more im­por­tant Chippewa rul­ing, how­ever, the court sided with En­bridge and the NEB against the lo­cal Indige­nous com­mu­nity.

This case re­volved around En­bridge’s plans to ex­pand and ad­just an ex­ist­ing pipe­line to let it ship heavy oil from the west to the east - plans which had been OK’d by the NEB.

Here, the court ruled, the gov­ern­ment agency had met its obli­ga­tion to con­sult. It held oral hear­ings; it pro­vided the Chippewa with in­ter­venor fund­ing; it took Indige­nous treaty con­cerns se­ri­ously.

That the Crown, in the form of the NEB, ul­ti­mately de­cided against the Chippewa, the court said, was be­side the point.

It had taken their Abo­rig­i­nal rights into ac­count. It had weighed them in its de­ci­sion. This, said the court unan­i­mously, is all that the Crown is re­quired to do.

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