Indigenous hands could shape future pipelines

NDP cannot stop project alone, Jocelyn Stacey writes.

A key policy commitment in the B.C. NDP and Green party agreement is to “immediately employ every tool available to stop the expansion of the Kinder Morgan pipeline.” There has been much buzz about this commitment debating what the province constitutionally can and cannot do. Alberta Premier Rachel Notley has stated that B.C. has no tools to overturn or block the federal government’s approval of the project. Indeed, the Trans Mountain Pipeline is a federal responsibility, which gives the federal government the constitutional upper hand.

While there is much that the province can do within its own provincial jurisdiction — withholding permits, for example — at the end of the day, it cannot, constitutionally speaking, impair a core or vital component of the undertaking. The province can make things messy and delay construction of the pipeline. But in our constitutional system, the province, on its own, cannot stop the pipeline.

But in response to questions last week, Green Leader Andrew Weaver quipped that Notley ought to have a look at Section 35 of our Constitution. Section 35 recognizes and affirms the aboriginal and treaty rights of Canada’s indigenous peoples. It is the constitutional toehold for a vast and rapidly evolving area of Canadian law that, among other things, recognizes aboriginal title and imposes specific obligations on the provinces and federal government to consult and accommodate aboriginal peoples whose treaty rights will be adversely affected by a proposed government action (for example, a pipeline).

Section 35 also provides the toehold for strengthening these requirements of Canadian law to implement the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which the Greens and NDP promise to adopt. Canada officially adopted UNDRIP last year. This declaration requires governments receive indigenous communities’ “free and informed consent prior to approval of any project affecting their lands and territories.” So, when Weaver says we ought to look at Section 35, there is a lot to chew on.

What precisely he has in mind is not yet clear. But there is one definite step that the province could immediately take to become an ally for indigenous pipeline opponents. The Squamish First Nation has challenged the province’s environmental assessment certificate, arguing that the province did not adequately consult and accommodate the Squamish when it changed its position to support the pipeline. The province could simply not defend itself in court, implicitly agreeing with the Squamish that consultation was inadequate and inviting the court to find the same.

There is precedent for this. The last time the NDP formed a government in B.C., the province was in the midst of fighting a complex court battle with the Gitskan and Wet’suwet’en nations in a monumental case known as Delgamuukw.

Before the NDP came into power, the trial court held that the nations could not have aboriginal title to their traditional territory because it had been implicitly extinguished by the provincial government. The judgment was appealed, but the new NDP government found the trial judge’s reasons objectionable. Instead of defending the trial judgment, it argued that aboriginal title had not been extinguished. This paved the way for a landmark decision from the Supreme Court of Canada affirming that aboriginal title was preserved in Section 35 of the Constitution and could not be extinguished by implication. Twenty years on, the Supreme Court of Canada has since held that “if the Crown begins a project without consent prior to aboriginal title being established, it may be required to cancel the project upon establishment of the title.”

If the province is truly interested in changing the constitutional landscape to block the pipeline, there is a clear way to do so. It needs to become an ally of the pipeline’s indigenous opponents. The first step is easy — don’t show up in court. After that comes the much harder work of forging nation-to-nation relationships with B.C.’s indigenous people as we move toward realizing a sustainable economy and UNDRIP’s promises in B.C.

When Weaver says we ought to look at Section 35, there is a lot to chew on.