The Chippewas of the Thames First Nation have launched a legal challenge against the National Energy Board’s (NEB) decision to approve Enbridge’s Line 9 oil pipeline project in southern Ontario and southern Quebec. The NEB – Canada’s independent energy regulator – approved the project to ship 300,000 barrels a day of oil and oilsands bitumen last month with soft conditions.

“This 40-year old pipe is subject to corrosion and heavy crude is going to be shipped through in higher volumes. We feel that this raises the possibility of new impacts beyond the right-of-way and we are concerned about our water resources and the environment,” says Chief Joe Miskokomon of the Chippewas of the Thames or Deshkaan Ziibing* in the Anishinaabe (Ojibwe) language.

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. DeSmog Canada reported last November that the federal government’s failure to fulfill its legal duty to consult with all of these First Nations could land the federal government and the Line 9 project in court.

The legal challenge was filed last Monday with the Federal Court of Appeal on the grounds the NEB approved Line 9 without the federal government “conducting any meaningful consultation” with Deshkaan Ziibing.

“The federal government has to consider our treaty and aboriginal rights enshrined within the constitution,” states Miskokomon in a press release. 

Federal Government Has Legal Duty to Consult on Line 9

“We still need to be consulted and we are willing to listen,” Myeengun Henry, a band councilor with Deshkaan Ziibing said in an interview with DeSmog Canada the night of Line 9’s approval.

The federal government did not attempt to consult any of the First Nations along the route of Line 9.

Both the Canadian Constitution and the Supreme Court have made clear the federal government’s legal duty to consult indigenous peoples in Canada (First Nations, Metis, Inuit) if a decision under contemplation may have adverse impacts on their constitutionally-protected indigenous and treaty rights:

“The honour of the Crown requires that these (indigenous) rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests” – Supreme Court’s ruling in Haida First Nation v. British Columbia (2004).

Proposed Changes to Line 9 Triggers the Duty to Consult

The NEB approved changes for Line 9 – increasing the capacity of the pipeline by 20 per cent to transport oilsands bitumen – carry with them new risks and new potential impacts on Deshkaan Ziibing and other First Nations in Ontario and Quebec. According to a pipeline safety expert who spoke with DeSmog last October the odds of a Line 9 rupture, given proposed changes, are 90 per cent.

“This is not an issue of inadequate or improper consultation with First Nations. No consultation by the federal government has taken place whatsoever,” lawyer Scott Smith told DeSmog Canada in an interview last November. Smith represented Deshkaan Ziibing and Aamjiwnaang First Nation in the Line 9 hearings. Deshkaan Ziibing and Aamjiwnaang are both in southwestern Ontario.

The federal government is expected to contest that changes to the pipeline give rise to new potential risks and impacts.

“We are being denied the dialogue to be included in solutions where Aboriginal and treaty rights are impacted by significant economic proposals put forward by industry and backed by the Canadian government,” says Chief Miskokomon. “We are not going away and part of our fate rests with this appeal.”

Deshkaan Ziibing provided evidence during the Line 9 hearings by means of a traditional land use study demonstrating to the NEB that the members of Deshkaan Ziibing still exercise their “aboriginal and treaty rights within the same territory occupied by Line 9.” Hunting, trapping, fishing, and collecting medicinal plants are just some of the traditional practices and rights still exercised by members of Deshkaan Ziibing in the Thames River valley. Line 9 crosses through the river.

Public Challenges Against the Line 9 Project

This is the second legal challenge against the Line 9 project. Last summer ForestEthics Advocacy launched a lawsuit against the federal government’s restrictions on public participation in pipeline project hearings. During the Line 9 hearings, participating citizens were prevented from commenting on the impacts the pipeline would have on climate change and the expansion of the oilsands in Alberta. ForestEthics argues this is a violation of the freedom expression under the Canadian Charter of Rights and Freedoms.

Two Ontario municipalities – Toronto and Whitby – have passed motions demanding the provincial government conduct an environmental assessment of the Line 9 project. The NEB-ordered environmental assessment of Line 9 was only conducted on the pipeline’s pumping stations, not on the pipeline itself. Surprisingly, the assessment failed to take in consideration what would happen if the pipeline ruptured.

*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 Credits: Chief Joe Miskokomon by Greg Plain | Line 9 map from Enbridge

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On Friday, January 11, while Kim Henry was marching in Ottawa as part of the Idle No More Global Day of Action, the air surrounding her home was turning sour. A leak at the nearby Shell Corunna Refinery filled the Aamjiwnaang First Nation community with the smell of rotten eggs, a typical indicator of the presence of hydrogen sulfide.

Henry is the academic principal of the kindergarten at Aamjiwnaang Binoojiinyag Kino Maagewgamgoons, a daycare that sits in a green crescent not far from the St. Clair River, which separates Canada from Michigan. This area, stretching south from Sarnia toward Lake Eerie has come to be called the Chemical Valley for its 62 nearby large industrial facilities (on both the Canadian and American side of the boarder). Those plants released 131 million kilograms of pollutants in 2005 alone, according to a report from Ontario’s Ecojustice, a charitable organization that advocates for environmental human rights. 

At Henry’s daycare, daily alarm tests from the three nearby petrochemical plants serve as a reminder that life in the Chemical Valley means being aware from a very young age that disaster could strike any moment.

“It can get stressful for the kids sometimes,” she says. “Even though some of them are really little, they know that if they're not eating lunch then that's not a normal alarm.”

On January 11, there was no alarm, although the daycare’s staff and neighbours detected the strange scent around 11:40 am.

Ada Lockridge, a community activist who helped to found the Aamjiwnaang Environment Committee, says her neighbour described the smell as a “number 8 or number 9 on the stink scale.” The odour, “hit you in the face, made you fall down. It was a strong odour of gas, like you were working in the gas station.”

Corunna’s plant manager, Michele Harradence, told the Sarnia Observer that the leak was discovered around 1:45 pm. Daycare workers reported the smell to the Ontario Ministry of the Environment before 2 pm but official word that there was a shelter-in-place – an order to go indoors and shut off all air intake – did not reach the daycare until 3:30 pm, after the shelter-in-place had been called off.

Henry says that residents throughout the neighbourhood were already suffering from headaches. “Later on that night some people had taken their children to the emergency because of headaches and a little bit of nauseousness. Some people were saying that their skin was really irritated and they had almost hive-like skin irritation.”

Furnaces in the daycare had to be shut off over the weekend, and when they were turned back on Monday, the air that lingered in the ducts was still pungent with aftereffects of the leak.

At a heated community meeting on Tuesday, January 15, Shell announced that the problem had involved sour water containing mercaptan – a class of organic chemicals used in refining oil – and benzene from their flare system. They said that the leak was contained to the plant. Ontario Ministry of the Environment spokesperson Kate Jordan later confirmed the presence of hydrogen sulfide, which would account for the rotten egg smell.

Jordan says that officials performed an air quality check after the incident and found that pollutant levels “didn't show any areas of concern.” They expect a full plain language report from Shell within the next week, which the company has promised to share with the daycare.

To Henry and her colleagues, the delay between the leak and the official announcement put the children of the community at unacceptable risk. “They have a right to justice and protection and we feel like that was violated.”

Inspired by her experience in Ottawa, Henry and daycare supervisor Muriel Joseph-Plain decided they would hold a rally of their own. The teachers in the kindergarten prepared their students with lessons that drew on Doctor Seuss’ the Lorax and traditional First Nations teachings about the sanctity of air, water and land. On Wednesday, January 16, about 100 members of the community marched from the daycare carrying signs that called for greater respect of children’s right to clean air.

This is not the first time the people of Aamjiwnaang have stood up for themselves. In 2008, they formed a bucket brigade to test their own air quality and discovered high levels of chloromethane, benzene, chlorobenzene, ethylbenzene and isoprene.

In 2010, with the help of Ecojustice, Lockridge and her former neighbour Ron Plain filed a challenge alleging that the Ontario Ministry of Environment’s ongoing approval of pollution in Sarnia violates their basic human rights under sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

Even if the community is unable to identify the specific contaminants from the leak, they may still have a case against Shell, according to Dr Elaine MacDonald, an environmental engineer who works with Ecojustice. Extremely strong odours such as those created by mercaptan and hydrogen sulfide are also considered a contaminant under Ontario law.

“We're hoping that this type of thing won't go unnoticed and that there'll be some enforcement action,” says MacDonald. “Even if this was an accident, it doesn't matter. There needs to be something to make sure that this doesn't happen again.”

MacDonald said that First Nations and poor communities are often treated as sacrifices to the petrochemical industry and this is undoubtedly the case for the Aamjiwnaang community.

“They've been there for hundreds and hundreds of years and these plants all popped up around their reserve,” she says. “The proximity of the plant to the reserve is quite stunning. They share property lines, basically. You'll have a refinery property line that backs on the very property of homes and community facilities like community schools, more so than you'll see in most places.”

Back at Aamjiwnaang Binoojiinyag Kino Maagewgamgoons, Shell has agreed to clean the daycare’s ventilation system and playground in light of the leak. But Henry believes that even this small concession would not have happened if the community hadn’t gathered together to demand a response.

“We need to have a better line of communication,” she says. “They need to contact us right away if there’s a shelter-in-place or any kind of emergency. They need to let us know sooner.”

Image Credit: From Ecojustice's Exposing Canada's Chemical Valley: An Investigation of Cumulative Air Pollution Emissions in the Sarnia, Ontario and Shell Canada.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.