Yesterday (June 11th) the Canadian Federal Court of Appeal granted the Chippewas of the Thames First Nation leave to take their challenge of the Line 9 pipeline decision to court. The National Energy Board (NEB) – Canada’s energy regulator – approved the Enbridge oil pipeline project last March despite the federal government failing to fulfill its legal duty to consult with First Nations along the 38-year old pipeline’s route in Ontario and Quebec.
Line 9 goes through the Chippewas of the Thames or Deshkaan Ziibing* in the Anishinaabe (Ojibwe) language traditional territory.
“We do not agree with the NEB’s decision enabling Enbridge to reverse the flow of Line 9B. While the NEB can give certain approvals, it does not give Enbridge the social license to operate. Now we are in the position of having to argue about this pipeline in the Federal Court of Appeal on the issue of aboriginal consultation,” Chief Joe Miskokomon of the Chippewas of the Thames said in a statement.
The southwestern Ontario First Nation argues allowing Enbridge to increase the capacity of Line 9 by twenty percent and ship oilsands (also called tar sands) bitumen through the pipeline increases the likelihood of a rupture. A Line 9 spill would severely impact Deshkaan Ziibing members’ constitutionally-protected indigenous rights. A pipeline safety expert who spoke with DeSmog last year said the odds of a Line 9 rupture was ninety percent.
“We need the public and First Nations across this country to see this appeal as an opportunity to lend their support to Chippewa, and to strongly encourage government and industry to pursue alternative approaches to address how natural resources are developed to benefit the seventh generation,” Chief Miskokomon said.
“First Nations are being drawn into pipeline discussions with Line 9B and Energy East projects. Chippewa is expressing concerns about the land and water but we find ourselves having to make assertions in areas covered by treaty. We want to help define what a new approach should be, as we prefer not be in the courts, and these matters should become standard practice,” Rolanda Elijah director of Lands and Environment for Deshkaan Ziibing says.
Line 9's Approval Puts Deshkaan Ziibing Rights in Jeopardy
The federal government’s duty to consult with Canada’s indigenous peoples (First Nations, Metis and Inuit) is triggered when a proposed project has the potential to negatively affect indigenous rights and treaty rights.
Deshkaan Ziibing demonstrated during the Line 9 public hearings held last October that its members exercise their rights by means of traditional practices (hunting, fishing, harvesting) in the area occupied by Line 9, the Thames River valley in case of Deshkaan Ziibing. A Line 9 rupture and the difficulties of adequately cleaning up a bitumen spill in particular would infringe upon Deshkaan Ziibing members' ability to exercise these rights.
Deshkaan Ziibing points to the office established by the Ministry of Natural Resources to hold discussions with BC First Nations over major pipeline projects as a way forward for Line 9 and other federally-approved resource projects affecting Deshkaan Ziibing territory.
Unfortunately creating an office to consult with First Nations after a regulatory process on a major energy project has begun or after the project has been approved is not acting in good faith and contravenes the legal precedent requiring the federal government to act “honourably” when conducting negotiations with First Nations.
“We know that there is a lot of public debate about oil pipelines because we are beginning to see that the old ways of doing business are no longer acceptable because of issues like global climate change and species extinction. Our elders have taught us that when we don’t respect Mother Earth our actions will come back to us,” Chief Miskokomon says.
Deshkaan Ziibing is one of fourteen Anishinaabe, Haudenosaunee (Six Nations), and Lenape (Delaware) First Nations living along or near the 38-year old Line 9 pipeline. Although the NEB has approved the project, Enbridge still needs to meet thirty relatively weak conditions the NEB set for the project’s before it receives the final go ahead.
Anishinaabe, Haudenosaunee, and Lenape are the names for the “Ojibwe,” “Six Nations” or “Iroquois,” and “Delaware” in their respective languages. Deshkaan Ziibing is the Anishinaabe name for “Chippewas of the Thames.”
Image Credit: Chippewas of the Thames