Nicole Peterson is a legal intern with West Coast Environmental Law who is participating in the Osgoode Aboriginal Clinical Intensive Program. She writes:
On January 30th, media, First Nations groups, activists and one law student intern crowded into a hotel room on the outskirts of Edmonton for a press conference held by the Yinka Dene Alliance. Alberta and Northwest Territories First Nations signed on to the historic “Save the Fraser Declaration” to oppose the export of tar sands oil to supertankers on the BC Coast. As a law student intern newly started at West Coast Environmental Law, I was very interested to watch First Nations asserting their decisions under Indigenous law.
First Nations have been using their own laws to make decisions about the Enbridge tankers and pipelines proposal. It started with the Coastal First Nations Declaration banning oil tankers on the north coast in March 2010. In December 2010, The Save the Fraser Declaration banned the Enbridge pipeline in the Fraser watershed, and oil tankers on the north and south coast – anywhere that Fraser River salmon migrate. The Declaration has grown from over 60 Nations in BC into an alliance of more than 100 Nations against Enbridge’s pipelines and tankers proposal, spanning geographic and provincial boundaries.
Throughout the Enbridge Joint Review Panel (JRP) hearings, we have seen BC First Nations present an unbroken wall of opposition to oil in their territories. Hereditary and elected chiefs of First Nations in Alberta and the Northwest Territories formally added their names to a steadily growing list of signatures, after the testimony of the Dene Elders and leadership at the JRP hearings. These chiefs declared their opposition to the pipeline to the Panel, and stated that it should not make a decision that goes against the decision of the opposed First Nations on the proposed pipeline and tanker route.
Chief Allan Adam of the Athabasca Chipewyan First Nation was one of the first new signatories to the Save the Fraser Declaration on January 30th, and he was clear that his alliance with BC First Nations was based on common priorities. "As a community being impacted by rapid tar sands development in Alberta we support the Yinka Dene Alliance and understand the importance of protecting sacred waterways from the dangers of this pipeline,” he said.“Our community has seen the devastating impacts of tar sands projects and we truly hope that our brothers and sisters in the Fraser River do not suffer the same fate." (see release)
First Nations will assume the risks of the proposed pipeline, while others will reap its benefits
Chief Jackie Thomas of the Saik’uz Nation in northern BC stated at the press conference on January 30th that First Nations are concerned they will take on unacceptable negative impacts and risks associated with the development of the tar sands the proposed Enbridge pipeline. Whether in northern BC, northern Alberta, or the Northwest Territories, Indigenous people depend on their traditional sources of food. Many First Nations leaders have also offered testimony in the JRP hearings about the importance of the salmon and eulachon fish to maintaining their cultures (see for example the testimony of Chief Marilyn Furlan, Haisla Nation, at para. 4074). First Nations in BC, Alberta and the Northwest Territories will suffer catastrophic harm when a spill into waterways destroys the foundation of the regional ecosystems and severs their distinctive connection with the land. The stakes of this project are extremely high, where on one hand an oil company stands to profit billions of dollars and on the other hand the survival of Indigenous communities and pristine ecosystems are at risk.
The Joint Review Panel is insufficient to consider First Nation interests
Although First Nations are disproportionately affected by the pipeline and have Aboriginal Title and Rights protected under the Canadian constitution, the federal government’s decision-making process does not recognize their authority to govern their own lands and waters. The panel will hear public and community comments and then recommend whether to build the pipeline over environmentally-sensitive unceded Aboriginal land. First Nations have questioned the legal authority of the Panel to decide matters on Aboriginal lands. Dene National Chief Bill Erasmus told the Panel:
“I advise that you look very carefully at whether or not you indeed have the authority to decide if a pipeline can be built into the territory of these people where there is no treaty, where there is no agreement with these people which is subject to the Royal Proclamation which this Constitution in Canada is founded on. ...
You have to look and find where [the federal and provincial governments] got that authority in writing. Where did they get that authority? Because the people on our side of the table here questioned that authority, it’s never been resolved.” (Hearing transcripts at para. 9406-9408).
While I'm in no position as a law student to comment on the constitutionality of the process, it's clear there are numerous First Nations who have serious concerns about and objections to the process the government has established to make a decision about their traditional lands and waters, and that the unresolved question of First Nations land rights is a major issue in the dispute over the proposed Enbridge project.
Panel Chair Sheila Leggett emphasized again on Friday that the Panel is only authorized to consider effects that stem directly from the pipeline itself (transcript at para. 9468). The harmful environmental impacts of expansion of the tar sands as a result of building the pipeline will not form part of the Panel’s assessment. However, Dene and Alberta chiefs, such as Grand Chief Samuel Gargan, argued that their communities are downstream from the development site and would be profoundly impacted by expansion of the tar sands (transcript at para. 9811).They argued that these issues are interrelated and the scope of the JRP hearings should allow for this important issue to be considered. West Coast has covered this issue before in this backgrounder.
The overall attitude of the Panel towards Indigenous leadership in the first nine days of hearings have not given First Nations many reasons to be optimistic that the it might recommend against the pipeline. The testimony from chiefs about the impact of the pipeline has been cut short (transcript at para 9468 Panel Chair Sheila Legget)as the hearings have extended into the evening. The Panel has also repeatedly emphasized it will not consider the environmental impacts of the project outside of the pipeline itself (transcript at para 9468 Panel Chair Sheila Legget).The perception that this process is stacked against First Nations was strengthened last week as a federal government document released under the Freedom of Information Act listed Aboriginal groups as Canadian “adversaries.”Moreover, recent statements by the Prime Minister and Minister Joe Oliver have made it clear that regardless of the decision of the Joint Review Panel, the federal government is considering pushing the pipeline project through.
Concluding observations from a law student
My placement at West Coast Environmental Law is through the Aboriginal Lands, Resources and Governance Clinical Intensive program at Osgoode Hall Law School. I was glad to observe the hearing process held by the National Energy Board, and the testimony of First Nations in the process, even though I understand that First Nations have been taking the position that the process chosen by the government is problematic. It has been a very exciting first week of my internship.
Law schools across Canada are beginning to integrate Aboriginal legal issues into their curriculums. I hope that the Save the Fraser Declaration will be an opportunity for law students to see the third legal system in Canada, that of Indigenous peoples, which has largely been ignored in traditional education. As law students, we should advocate for a legal education that respects and recognizes the role of First Nations law and authority to make decisions over their own territories, as a critical underpinning of the legal landscape.
By Nicole Petersen, Legal Intern