Supreme Court to rule on whether Line 9’s First Nations consultation process was constitutional

Image description: Two people hold a large flag, featuring on horizontal white bands with a horizontal purple band above and below it. On the flag are the words "No Consultation! No Consent! No Line 9! Respect The Treaties - Support Chippewas of the Thames First Nation!" In front of the banner, a woman is speaking into a microphone, presumably addressing an out-of-the-picture crowd; to her left are two onlookers. (Image credit: Facebook/Anishnabek Rise via rabble)

Image description: Two people hold a large flag, featuring a wide horizontal white bands with narrower horizontal purple bands above and below it. On the flag are the words “No Consultation! No Consent! No Line 9! Respect The Treaties – Support Chippewas of the Thames First Nation!” In front of the banner, a woman is speaking into a microphone, presumably addressing an out-of-the-picture crowd; to her left are two onlookers. (Image credit: Facebook/Anishnabek Rise via rabble)

In a major win for pipeline resisters, the Supreme Court of Canada has agreed to hear an appeal by the Chippewas of the Thames First Nations which threatens to shut down Enbridge’s Line 9B.

It’s also a case with broad implications for several major pipeline projects currently under review, as well as for resource development on First Nations across (so-called) Canada.

The Chippewas of the Thames allege that they were not properly consulted on the reversal of the pipeline, which was previously transporting light crude oil from east to west. A finding in their favour could mean a cancellation or suspension of Enbridge’s approval to reverse the line, and may have an impact on several ongoing NEB reviews into major tar sands pipelines.

In 2012, Enbridge applied to the National Energy Board (NEB) for permission to reverse the line, increase its pressure and capacity, and switch to transporting diluted tar sands bitumen, a much more toxic and corrosive material which is far more difficult to clean if spilled. The proposed reversal was immediately contentious, and aroused widespread opposition from communities all along the length of the line, and particularly from First Nations communities.

This opposition has continued and even grown in the months since the line was reversed. Even before the reversal was approved, the Chippewas of the Thames were already challenging the NEB and Enbridge in court over what they saw as a fundamentally flawed consultation process which failed to respect their Section 35 Charter right to direct consultation from the Crown.

The Supreme Court’s decision to hear the case (along with a legally similar dispute between the Inuit community of Clyde River and the NEB) comes at an extremely sensitive time for the Trudeau government, which for the past few months has been trying to convince First Nations and affected communities of the value of its interim reform to the NEB process. The widely-touted reform include increased consultation with First Nations as one of its five main components, but many Indigenous leaders have dismissed the changes as “very minor” and complained that they were not consulted about the changes to the consultation process:

“The process is done and it was carried out under those bogus Harper rules,” said Grand Chief Stewart Phillip, the president of the Union of British Columbia Indian Chiefs on Thursday. “There will now be more consultation according to yesterday’s announcement but that is something that Canada is already required to do under the Constitution. What needs to be demonstrated is the federal government’s willingness to take no for an answer from First Nations like Tsleil-Waututh Nation, who are exercising their sovereign decision-making power.”

At issue here is whether the government can outsource its duty to consult to an arms-length board of energy-industry appointees, as well as the NEB’s unwillingness to, as Chief Phillip says, take no for an answer. The Chippewas of the Thames have been very clear that they have major concerns about the threat that Line 9B poses to not just their territory, but all the territory it crosses. In a statement following the Supreme Court’s announcement that it would hear the case, Chief Leslee White-Eye drew special attention to the issue of water.

“Our community is pleased by this forward step but the path before us is still long as we continue to seek protection of our Aboriginal and Treaty rights,” said White-Eye. “We need to bring home that we are not acting alone in the action, nor that it is for our sole benefit but an attempt to seek protection of our water – these energy developments are one of many across the nation impacting our rights.”

It certainly seemed as though Trudeau’s Minister of Indigenous and Northern Affairs, Carolyn Bennett, endorsed a more expansive view of Indigenous rights to consultation and consent in December, when she announced the government’s intention to sign the United Nations Declaration on the Rights of Indigenous Peoples:

The Crown already has a constitutionally protected “duty to consult” with aboriginal peoples on issues that might affect their interests, but the UN declaration goes much further and calls on governments to obtain “free, prior and informed consent,” including when it comes to natural resources development…

How does a federal government implement those principles without risking a loss of control over its agenda? Bennett said achieving mutually beneficial results begins by having a conversation, and having it right away.

“There are many ways of achieving mutual results, but it begins with the conversation and it isn’t writing legislation and then saying, ‘You love it, don’t you?’ We are committed to sitting down early, at the earliest possible moment, on every single thing that will affect indigenous people in Canada,” said Bennett, who believes it is “hugely important” all parliamentarians, government departments, provinces, territories, mayors and municipalities understand this too.

As I said at the time, one way the Liberals could have demonstrated their unequivocal commitment to proper nation-to-nation consultation and the principle of free, prior and informed consent would be to properly restart the consultation process with the Chippewas of the Thames, and call on Enbridge to temporarily halt Line 9B until those consultations could be satisfactorily completed. Of course, they’ve done no such thing, and now a major part of their pipeline agenda is at risk of being undermined by the Supreme Court.

If the Court rules expansively in favour of the Chippewas of the Thames, the Liberals’ new approach to pipeline approval, which they’ve pushed hard as the best way to secure a “social license” for the projects and get tar sands bitumen to international markets, would be severely undermined. The entirety of the NEB’s deeply flawed consultation process on megaprojects like Energy East, Trans Mountain and Northern Gateway may be deemed inadequate, and the validity of NEB decisions going back years and even decades may be called into question.

Such an expansive ruling is not out of the question. The Supreme Court has in the past few years come down strongly on the side of Indigenous rights in a few major cases. In 2011, the Court rebuked the Canada Revenue Agency and strongly affirmed First Nations tax immunity. And in 2014, in what legal observers deemed the most important Aboriginal rights case in Canadian history, the Court unanimously ruled in favour of an expanded understanding of Aboriginal land titles which gave First Nations massively increased leverage in negotiating with natural resource development corporations.

There’s no word yet on when exactly the Supreme Court will hear the case, but again, their decision to take it on is a major win for pipeline resisters and First Nations all across (so-called) Canada, and should give all the folks who’ve worked against Line 9 for so many years a renewed sense of hope.

If you’re able to, please consider donating to help the Chippewas of the Thames cover their legal fees. They’re facing down an extremely wealthy corporation in this case, as well as the government of Canada and the NEB. Any help they receive will doubtless be appreciated.

Solidarity with the Chippewas of the Thames, and with all First Nations who are fighting to protect the land and the water!

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