Questions raised over whether First Nations could stop Enbridge pipeline

Date of publication: 
27 January 2012

The world received two blunt messages this week on Enbridge Inc.’s proposed $5.5-billion oilsands pipeline from Alberta to B.C.’s northern coast.

Prime Minister Stephen Harper told the World Economic Forum in Davos, Switzerland, that the government will “make it a national priority to ensure we have the capacity to export our energy products beyond the United States, and specifically to Asia.”

But that pitch for the pipeline megaproject, which would open up the largely land-locked oilsands resource to non-U.S. buyers, was countered by a report quoting Assembly of First Nations National Chief Shawn Atleo.

Atleo said the federal government and Calgary-based Enbridge required the “consent” of B.C. First Nations who are mostly opposed to the project.

So do aboriginals have the legal ability to stop a major energy megaproject that the Harper government touts as the key to creation of numerous jobs and billions of dollars in new wealth?

They probably don’t, legal experts said this week, though uncertainty remains about how courts might deal with a legal challenge.

Atleo’s claim was made at a news conference after this week’s Crown-First Nations summit in Ottawa.

“The notion of First Nations having free, prior and informed consent means exactly that,” said Atleo, national chief of the Assembly of First Nations.

Atleo, of B.C.’s Nuu-chah-nulth First Nation, avoided using the word “veto.” Instead, he adopted the “free, prior and informed consent” that is taken direction from the United Nations Declaration on the Rights of Indigenous Peoples.

Another of B.C.’s aboriginal leaders, Jody Wilson-Raybould, concurred.

“There are impacts of major development projects that, based upon our rights and our territories, may and potentially will require the consent of First Nations,” said Wilson-Raybould, a lawyer and the AFN’s regional chief in B.C.

“This notion of free prior consent has no legal basis in Canada – none. Zip,” said Vancouver lawyer Thomas Isaac, a former B.C. government chief treaty negotiator who has acted in the past for Enbridge.

“That’s not to say that people ought not to seek consent. That’s a different question. But is there a basis in law? Not a shred.”

University of B.C. law professor Gordon Christie said in an email it “is a bit strong to say a veto of some sort exists at this point in time.”

But First Nations along the route “do have powerful claims that just might prevent the state from simply pushing a pipeline through their territories and, most troubling, across their riverways.”

There are two touchstones cited in legal arguments which assert that First Nations do potentially wield a veto in the event that the National Energy Board panel approves the project, as many expect it will, in late 2013.

The first is international in nature. Atleo’s notion of “consent” comes directly from wording sprinkled throughout United Nations Declaration on the Rights of Indigenous Peoples, which was adopted by the UN General Assembly in 2007 and endorsed, after considerable hesitation, by the Harper government in 2010.

The declaration says states should obtain from indigenous peoples “their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”

But the declaration is not a treaty, said Nigel Bankes, chair of natural resources law at the University of Calgary’s law faculty.

“I think most people would say that part of the declaration is aspirational in nature rather than customary law.”

In fact, the Canadian government’s website uses that term, saying the 2007 declaration “is a non-legally binding aspirational document.”

The Harper government also spelled out its objection to the “consent” wording, noting its concerns regarding “those provisions dealing with lands, territories and resources; free, prior and informed consent when used as a veto; self-government without recognition of the importance of negotiations; intellectual property; military issues; and the need to achieve an appropriate balance between the rights and obligations of Indigenous peoples, member states and third parties.”

Of greater relevance is Canadian case law that has required governments in Canada to “consult” and “accommodate” First Nations on land-use decisions.

But common-law precedents don’t say aboriginals with established title to the land in question have a blanket veto on land-use decisions. In fact, the law specifically contemplates allowing title to be “justifiably infringed.”

The Supreme Court of Canada’s landmark 1997 Delgamuukw decision specifically spells out the government’s right to “infringe” on aboriginal title.

“The development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title,” the decision said.

The court made it clear infringement couldn’t take place without meaningful consultation that could, in certain cases, open the door to the requirement of consent.

“This consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation,” the court stated.

“Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.”

Both Bankes and University of Victoria aboriginal law expert Jeremy Webber said the strongest case could come from the Haisla First Nation.

Roughly half of the 1,500-strong Haisla First Nation live in Kitimaat Village, about 11 kilometres south of Kitimat, the coastal community where hundreds of supertankers will dock each year to load diluted bitumen from the Enbridge pipeline starting in late 2017, assuming the project proceeds as scheduled.

“The peoples that would have the strongest argument for consent being required are those whose lands would be heavily affected – those, for example, where the pipeline would cut through the heart of their lands, where it would endanger some resource or interfere with their use of the land, or where there was a risk of heavy damage from spills, etc.,” Webber wrote in an email.

“I am not an expert on the technical aspects of this project, but I would think that the Haisla would have to be one of the nations with the biggest potential impact – the largest risk of spills, on land and in both fresh and salt water; the greatest intrusion on their traditional territory.”

Bankes said a legal case would most likely be launched at the Federal Court of Appeal level after an NEB go-ahead.

“But I don’t think there’s a veto except in really quite exceptional circumstances,” he said, singling out the Haisla.

“They’d say, ‘We are a marine people, we are shellfish harvesters, we are fishery folks. It’s fundamental to our culture and this imposes such a huge risk of destroying that culture.’ That’s the nature of the argument.”

Isaac said no court has yet ruled that a specific First Nation has title to a specific piece of land.

“It’s going to come, it’s going to happen,” he said.

“I am sure there will be (a decision) some day where consent is required over a discreet parcel of land of high significance to a First Nation, where title has been proven. But we’re a ways away from that and we don’t know what that would look like.”