Chippewas of the Thames protest pipeline
Canada’s top court scheduled to hear First Nation’s case against Enbridge’s Line 9
The pipeline snakes across the forested plain, east from a place called Aamjiwnaang and on through the land that Myeengun Henry says has never been surrendered.
He said his nation, the Chippewas of the Thames, didn’t consent to the pipeline’s construction in the first place, 40 years ago. And when Enbridge, the pipeline owner, wanted to put through more oil and partially reverse its flow, Henry and his compatriots called for direct “nation to nation” consultation with the Canadian government — such is their constitutional right, he argued.
But the Chippewas of the Thames argue that right was denied despite direct appeals to federal ministers during community hearings on the proposal for Enbridge’s Line 9, which was approved in 2015.
Now, even as Alberta crude chugs through the pipe under the Thames River — upstream from the First Nation’s reserve, Henry points out — the community of 2,800 is taking their push for consultation to the highest level: the Supreme Court of Canada. This week, as their legal bills mount, the Chippewas of the Thames launched a crowdfunding campaign to raise $500,000 to help cover the cost of their case.
“The problems is, if we should lose this court case, we’re going to be subject to Enbridge’s costs, too. This is a huge risk for our nation,” said Henry, who is serving his third term as band councillor. “But we’ve got to this point, and we’re not going to stop now.”
Canada’s top court is scheduled to hear the Chippewas challenge on Nov. 30, the same day as another case brought forward by the Inuit in Clyde River, a small town in Nunavut.
Similar to the Chippewas’s claim, the Clyde River Inuit said they weren’t properly consulted by Ottawa during the process that approved seismic testing for oil off the coast of their small community.
Nader Hasan, a Toronto lawyer representing the Inuit in the Clyde River appeal, said the two cases are of the upmost national importance.
“At a fundamental level, both cases involve legal issues emanating from the constitutional duty to consult,” Hasan said.
“It’s also about Canada’s soul. What kind of a nation do we want to be? One that takes seriously our constitutional obligations to First Nations, or one that treats indigenous rights as a box to be ticked off in a due diligence check list. That’s what’s ultimately at stake here.”
The lawyer representing the defendants in the case, Sandy Carpenter, declined to comment.
Meanwhile, the Chippewas’ challenge originates in 2012, when En- bridge announced plans to reverse the flow of a long stretch of its Line 9 pipeline, which runs from Sarnia, Ont. — a place the Chippewas call Aamjiwnaang — to Montreal. The company also wanted to increase the capacity of the whole pipeline, to carry oil from Alberta to a refinery on the St. Lawrence River.
The proposal garnered controversy as First Nations and environmental activists staged protests, arguing the project would increase greenhouse gas emissions from the Alberta oil sands and that the risk of an oil spill across the country’s most populous corridor was untenable.
In September 2013, the Chippewas of the Thames sent letters to several federal ministers asking for direct consultation, while participating in the public hearings process of the National Energy Board (NEB), the federal body charged with ruling on Enbridge’s proposal. They didn’t get a response to the letters until three months after the hearings finished, when the government said it relies on the NEB process to “address potential impacts to Aboriginal and treaty rights stemming from projects under its mandate,” according to a federal court decision on the challenge.
The NEB gave final approval to the Line 9 changes in February 2015, and the Chippewas challenged the decision on the grounds that they weren’t properly consulted. The Federal Court of Appeal dismissed the challenge last October, prompting the First Nation to appeal that decision to the Supreme Court.
“Our argument is we need to speak with the government of Canada,” Henry said. “Nowhere have we heard that they can regulate a third party to act on their behalf.”
Lawyers for Enbridge and the NEB did not respond to requests for comment.
Hasan, the lawyer in the Clyde Riv- er case, said his clients’ argument is similar to Henry’s: The Inuit of that community contend they weren’t adequately consulted about the NEB’s approval of seismic testing, which was given in 2014. “Given the stakes of the people for Clyde River, this is a case that triggers that duty to consult at the highest level.”
Both Henry and Hasan acknowledged there may be momentum for their arguments, in light of the decision by the Federal Court of Appeal to quash Enbridge’s Northern Gateway pipeline through northern British Columbia because the government did not adequately consult aboriginal peoples. Hasan added, however, that the Supreme Court isn’t bound by the decisions of lower courts.
“At a minimum, the government has to be at the table,” he contended. “The Supreme Court of Canada has been very forward looking in developing the law on the duty to consult.”