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

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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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