2016 is shaping up to be a year of major victories for pipeline resisters across (so-called) Canada. And once again, the latest major victory was made possible through the leadership of First Nations directly impacted by untrammelled resource extraction.
In a serious blow to Enbridge’s Northern Gateway pipeline, the British Columbia Supreme Court ruled last week that the (so-called) province of B.C. abdicated its duty to consult First Nations when it signed an “equivalency agreement” with the federal government in 2010 which gave the National Energy Board (NEB) “equivalent” status and the authority to conduct these consultations on the province’s behalf.
Analysts suggest that British Columbia is unlikely to appeal the ruling, given that the Supreme Court confirmed the existence of powers they most likely do not want to surrender.
And as for the implications for Northern Gateway…well, I’ll let the litigants brag for themselves:
“I don’t think we could be happier. This is a landmark decision,” said former Coastal First Nations executive director Art Sterritt, who said he and others were “pretty confident” about the odds of winning the case.
“Coastal First Nations brought this to the attention of the province before Northern Gateway was approved by the National Energy Board. We said, ‘hold on here, you can’t make a decision that affects our lives without talking to us first.’… So basically Northern Gateway is back where they started 10 years ago.”
Coastal First Nations lawyer Joseph Arvay said the ruling effectively nullified the federal government’s initial approval of the Enbridge Northern Gateway pipeline.
“What it means is, Enbridge now has to come back and get the (environmental) certificate from British Columbia,” he said. “The ruling said the B.C. government abdicated its duty to conduct an environmental assessment, and its duty to consult with and accommodate First Nations.”
Enbridge, of course, begs to differ on the question of whether the ruling nullifies the NEB’s approval of their Northern Gateway pipeline project in mid-2014. The approval, which came with the substantial caveat of 209 conditions, has not been acted upon, as the oil and gas giant seeks to build support within First Nation communities affected by the line.
Meanwhile, the NEB declined to comment on the implications this case has for their ability to consult with First Nations on projects, the support of the relevant provincial or territorial government notwithstanding.
Northern Gateway’s fate, of course, was already in doubt, as the federal Liberals seem intent on pushing through a tanker ban in northern B.C. which would effectively doom the project. The project is also facing a slew of court challenges, and is increasingly unlikely to be constructed.
But the implications of the ruling are wide-ranging. The “equivalency agreement” in question also covered several other pipeline projects, including Kinder Morgan’s TransMountain, the approval processes of which are also undermined by the ruling.
TransMountain is in a similarly precarious position after the governing Liberal Party in B.C. decided to oppose the project, likely influenced by popular opposition in advance of what ought to be a close election next year.
There are also, indirectly, implications for pipeline projects across the country.
Although the B.C. Supreme Court’s decision obviously doesn’t directly apply nation-wide, it sets a strong precedent for any First Nation arguing that the NEB’s preposterous (and racist) approach to consultation is inadequate from a Constitutional point of view.
The most obvious case that this has bearing on is the Chippewa of the Thames’ First Nation’s Supreme Court of Canada challenge to the NEB’s approval of the reversal of Enbridge’s Line 9B in (so-called) southern Ontario and Quebec. The Chippewas of the Thames argue that they were never properly consulted on the reversal, and that the NEB and Enbridge were unable to act on behalf of the federal government in this regard.
The Federal Court of Appeal narrowly ruled against the Chippewa of the Thames last year. In a 2-1 decision, the Court ruled on narrow grounds that the government did not have a duty to consult in this instance because they did not appear before the NEB. There is reason to hope that the Supreme Court of Canada, which in recent years has been extremely friendly towards arguments in favour of Indigenous rights, will see the case differently, and with B.C. Supreme Court’s ruling as a precedent, the Chippewa of the Thames have a lot going for them.
Clearly, these two cases deal with different particular issues. But the B.C. Supreme Court finding sets a strong precedent in terms of the inalienability of the federal government’s responsibility when it comes to properly consulting First Nations on resource extraction.
This also speaks to the brokenness of the NEB process, an issue that folks who’ve had to deal with the Board have been hollering about for years to anybody who would listen. The Trudeau government’s promised “reforms” of the NEB have to date been completely missing in action.
I’ve written before about how disruptive direct action remains our best bet for stopping projects like Line 9 which are already in place, or on which construction is underway. (And on that note, see this badass action from today against a Kinder Morgan drilling barge making preparations for the TransMountain pipeline, for which hearings are ongoing.)
But an equally important path of resistance against pipelines is in the courts, as this an arena in which First Nations can very effectively assert their rights. Last week’s decision was a huge win for First Nations communities in B.C. which would have been adversely affected by the Northern Gateway pipeline, but and it may well turn out to be a huge win for all the First Nations right across (so-called) Canada pushing back against these disastrous pipeline projects.
Here’s to 2016 being the Year of Victories for pipeline resisters!