Many Indigenous leaders have expressed disappointment that only the leaders of the national organizations representing Inuit, Métis and First Nations were allowed to fully participate in the talks at a climate strategy meeting with the prime minister and premiers earlier this month. Other Indigenous leaders in attendance for the meeting in Vancouver were relegated to the role of spectators.   “Limiting conversation to three Indigenous voices from over 600 Indigenous communities across Canada is a vast under representation,” Melina Laboucan-Massimo, a climate and indigenous rights activist, said. “At a bare minimum, the regional chiefs should be at the table as well, but also Indigenous leaders and experts who work on climate should be as well.”   Regional chiefs were also frustrated that their input into the pan-Canadian framework for clean growth and climate change is limited, despite Prime Minister Justin Trudeau’s promise of a “renewed, nation-to-nation relationship” with Indigenous people in Canada.   “We thought we’d have a chance to speak, but it was the national chief who was permitted to speak for about ten minutes. Ten minutes for all First Nations in Canada? That is a slap in the face to First Nations and embarrassment for Canada,” Ontario Regional Chief Isadore Day told DeSmog Canada. “Climate change is a matter of life and death. Our kids and grandkids will suffer if we fail to act and we only have a 20-year window to act. Clearly, we all need to work together.”

Treaty 6 Grand Chief Tony Alexis, an Alberta regional chief, said First Nations had been merely “asked to come and visit” the climate meeting. Chief Allan Adam of the Athabasca Fort Chipewyan First Nation in Alberta declared the federal government and premiers had “failed terribly” in addressing Indigenous concerns about climate change and protecting the environment.

“We Were Not Welcome At The Table": Chief Day   Two days of meetings took place in Vancouver: a meeting on March 2nd for Indigenous leaders, premiers and the prime minister and a meeting the following day exclusively for the provinces, territories and the federal government. Last-minute invitations to join the Alberta and Ontario provincial delegations allowed Day and Alexis to be present at the final meeting.   “We were not welcome at the table. If the meeting is an indication of how things will proceed moving forward, Indigenous peoples and Canadians should be concerned,” Day said.   Not all provinces appear comfortable with Indigenous leaders playing a significant role in the crafting of a Canadian climate framework either.   “From what I heard some provinces indicated during the meeting they would like to limit Indigenous involvement in the climate framework. I find this very concerning, not to mention deeply disrespectful,” Laboucan-Massimo told DeSmog Canada. “It is of immense importance for Indigenous governments to be engaged from start to finish at the four climate tables, and I hope that all levels of government respect that.”   Before the summit in Vancouver had begun, the federal government came under fire for failing to invite two other national Indigenous organizations — Native Women’s Association of Canada and the Congress of Aboriginal Peoples — to the talks. NDP Leader Tom Mulcair blasted Trudeau in Parliament for the “slight” and Manitoba Premier Greg Selinger pointed out in the past all five national organizations have been invited to attend first ministers meetings.   Indigenous Peoples To Be Consulted On The Climate Change Framework   A “broader engagement process with Indigenous peoples” is meant to take place alongside the work of four federal-provincial working groups studying key climate policy areas such as clean technology, carbon pricing mechanisms and greenhouse gas reductions strategies. If the recommendations are approved at a first ministers meeting this fall, they will make up the bulwark of a national framework shaping Canada’s responses to climate change.   The details of the consultation process have not been made available yet, but both Day and Laboucan-Massimo agree the process needs to be as comprehensive as possible for Indigenous concerns to be heard and incorporated.   "I think a climate change accord in Canada is necessary going forward. It would spell out how a constructive dialogue between Indigenous people and the federal government could take place," Day said.   Indigenous knowledge could also strengthen a national plan to address climate change. Scientists have already begun using Inuit knowledge and observations for studying weather patterns in the Arctic. Firsthand information like this can be used to test climate models.   “Because of the innate connection to the land, Indigenous people notice changes in the ecosystem, animals and water that others may dismiss. We’ve had centuries of observation, experience and intimate relationships to the land that has built this unique knowledge and sensitivity,” Laboucan-Massimo told DeSmog Canada. Laboucan-Massimo is a member of the Sakaw Nehiyawak (“Northern” or “Bush” Cree in English).   Laboucan-Massimo also sees the low-carbon economy as much more in line with Indigenous worldviews than fossil fuels economies.

“For the first time since the age of industrialization, there finally exists a technology that produces energy that is not in complete contradiction with Indigenous values and our way of life,” Laboucan-Massimo said. “The time is now for our communities to begin integrating renewable energy technology such as solar photovoltaic to help us become less reliant on fossil fuels.” 

Image: Melina Laboucan Massimo at a solar installation in her community of Little Buffalo in northern Alberta.

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A wall of First Nations opposition to the proposed Energy East oil pipeline is emerging in northwestern Ontario, where Treaty 3 Anishinaabe chiefs unanimously endorsed a declaration on crude shipments through their territory.

“We are joined to Declare to our Nation, as the political leadership we are determined to ensure that no oil or bitumen shall be transported through Anishinaabe Aki without our full, prior and informed consent,” the eleven-point declaration signed on February 26th in Couchiching First Nation reads.

Much like the Save the Fraser Declaration, which galvanized First Nations opposition against the Northern Gateway pipeline in British Columbia, this document demonstrates Treaty 3 chiefs are also concerned about the risks of piping oil and oilsands (also called tar sands) bitumen through their traditional territory and drinking water supply.

“Water is sacred. Water is life,” Chief Fawn Wapioke of Iskatewizaagegan (Shoal Lake #39 First Nation), a signatory of the declaration, said.

Treaty 3 First Nation comprises twenty-five Anishinaabe (Ojibwe in English) First Nations. Some Treaty chiefs were not able to attend the two-day special assembly last week, but there appears to have been no disagreement amongst the chiefs present on endorsing the declaration.  

“It’s good to have a united position in our territory. There was no opposition. Everyone is on the same page,” Wapioke told DeSmog Canada.

This is the not the first time Treaty 3 has raised their concerns publicly about the proposed 4,600-kilometer TransCanada pipeline from Alberta to New Brunswick either.

Treaty 3 Grand Chief Warren White made it clear last February at a Ontario Energy Board meeting he had no intention of being remembered as the “grand chief who consented to a pipeline that’s going to destroy 30 per cent of the fresh water in Ontario, in Treaty 3 territory.”

With the declaration, Treaty 3 First Nation is emerging as the epicenter of First Nations’ opposition to the 1.1 million barrels-a-day pipeline project.

“This is a very critical issue to us and our future,” Chief Wapioke said.

No Pipeline Without Treaty 3 Consent

Treaty 3 also asserts in the declaration their “consent” must obtained for the Energy East project to go forward, a reference to the relatively new international standard of “free, prior and informed consent” found in the United Nations Declaration on the Rights of Indigenous People (UNDRIP).

“First Nations are not just another stakeholder. Chief Stan Beardy, head of the Chiefs of Ontario, an organization representing 133 First Nations, said. “Under Section 35 [of the constitution] we are the only group with our own legally, constitutionally recognized aboriginal and treaty rights.”

“We want to give our consent, we are not saying no [to development]. But we want to be able to make an informed decision in terms of how we expect to be accommodated under international law,” Beardy told DeSmog Canada.

Although, Canada signed the UN declaration, no Canadian court has upheld the right to “free, prior and informed consent.” Recent court rulings in Canada have established the federal government has the legal duty to consult with First Nations, Inuit and Metis on projects that may negatively impact their constitutional protected rights. 

Consultations with First Nations Have Been "Inadequate" to Date

Beardy describes the current consultations with First Nations through the regulatory process on the Energy East proposal as “totally inadequate.” Real consultations needs to be face-to-face and not “online consultation” according to Beardy.

The Chiefs of Ontario asked the National Energy Board, federal pipeline regulator, to halt the process temporarily in order for adequate consultations with First Nations to take place. There is no indication the board plans on fulfilling the request. 

Grand Chief White of Treaty 3 has also accused TransCanada trying to “pull a fast one” on Treaty 3 chiefs by failing to engage in meaningful consultations with Treaty 3 chiefs.

At 1.1 million barrels of bitumen and oil a day, TransCanada’s Energy East project would be the largest oil pipeline in Canada. The Calgary-based pipeline company proposes to retrofit 3,000 kilometers of an existing natural gas pipeline and build another 1,600 kilometres of pipeline for the project.

The existing, TransCanada operated natural gas pipeline goes through Treaty 3 territory.

“We are concerned about the potential impacts to water of this project. It could devastate our watershed,” Chief Wapioke of Iskatewizaagegan told DeSmog Canada.

Image Credit: TransCanada

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The federal government has failed to fulfill its legal duty to consult First Nations in Ontario and Quebec about Enbridge’s Line 9 project that would see oilsands bitumen shipped through a 37-year old oil pipeline.

“This is not an issue of inadequate or improper consultation with First Nations. No consultation by the federal government has taken place whatsoever,” says Scott Smith, the lawyer who represented Aamjiwnaang and Deshkon Ziibi* (Chippewas of the Thames) – two Anishinaabe* First Nations of southwestern Ontario – during the Line 9 hearings. The hearings concluded on October 25th.

Failing to consult with the fourteen Anishinaabe (Ojibwe), Haudenosaunee* (Iroquois), and Lenape (Delaware)* First Nations communities living along or near the Line 9 pipeline could land the federal government and the Line 9 project in court.

“Transporting dilbit (diluted bitumen) through Line 9 is going to have a big impact on us, our drinking water and our traditional practices. It will increase the risk of a rupture,” Myeengun Henry, a band councilor from Deshkon Ziibi told DeSmog Canada.

An international pipeline safety expert revealed to DeSmog Canada in an interview in October that if Line 9 is approved to ship bitumen (technically “dilbit” when transported through pipelines) the probability of the pipeline rupturing is “over 90%.” Line 9 has never transported heavy crudes such as bitumen before.

The ‘honour of the Crown’ Demands the Federal Government Must Consult

When the federal government is contemplating a decision that has the potential to adversely impact indigenous peoples in Canada (First Nations, Inuit, Métis) the government is legally required to consult with the affected indigenous parties to ensure their best interests are met and their rights protected.

This ‘duty-to-consult’ flows from a legal concept called the ‘honour of the Crown.’ The federal government is required to act “honourably” or in the best interests of indigenous peoples in regards to their rights. The legal precedent for the duty to consult comes from the Supreme Court’s ruling in Haida First Nation v. British Columbia in 2004:

“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.”

“Failing to consult with First Nations about Line 9 is a slap in the face to Canada’s own law,” says Henry from Deshkon Ziibi. Deshkon Ziibi is near London, Ontario.

Aamjiwnaang and Deshkon Ziibi also sent a joint letter to the Prime Minister Stephen Harper, Minister of Natural Resources Joe Oliver and Minister of Aboriginal Affairs Bernard Valcourt dated September 27th inviting the federal government to initiate consultations with them on Line 9. They have yet to receive a reply.

Proposal to Ship Bitumen ‘Triggered’ the Duty-to-Consult

Scott Smith, the lawyer acting on behalf of Aamjiwnaang and Deshkon Ziibi argued during the Line 9 hearings the federal government cannot avoid consultations with his clients simply because Line 9 is an existing pipeline:

“Enbridge’s proposal to fundamentally repurpose Line 9 to make it commercially viable again has the potential to cause new and additional impacts on the Rights (of Aamjiwnaang and Deshkon Ziibi),” stated Smith in an oral submission.

The Anishinaabe, Haudenosaunee, and Lenape have recognized rights under Section 35 of the Canadian constitution to hunt, fish and harvest on their traditional lands. A ‘dilbit disaster’ on the scale of the Kalamazoo spill in Michigan or the Mayflower spill in Arkansas would severely impede their ability to practice these rights.

Free, Prior, and Informed Consent is the New Standard for Indigenous Peoples

“The duty to consult and accommodate is the minimum standard here,” says a letter about Line 9 from the Chiefs of Ontario sent to the National Energy Board (NEB) on August 6th. The NEB oversees the approval or denial of proposed pipeline projects such as Line 9.

“First Nations now assert a right to Free, Prior and Informed Consent in the case of proposed projects that are likely to affect their rights,” the letter explains. The Chiefs of Ontario is an organization representing 133 First Nations in the province.

The concept of ‘free prior and informed consent’ or FPIC is found in the UN Declaration on the Rights of Indigenous Peoples. FPIC goes a step further than the duty to consult by requiring national governments “to obtain (indigenous peoples’) free, prior and informed consent” before making a decision that may affect indigenous peoples.

“There has been no attempt to conform to the Free, Prior and Informed Consent (FPIC) standard of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Our position is that rubber stamping of the Enbridge proposal will harm the environment and will violate First Nations rights,” concluded the Chiefs of Ontario.

The Canadian government rather reluctantly signed on to the declaration in 2010. The declaration is not legally binding and the Canadian government has been accused of interpreting “consent” as consultation.

Enbridge proposes to reverse Line 9 to flow west-to-east, increase the capacity of the pipeline from 240,000 to 300,000 and transport heavy crudes such as oilsands bitumen through the pipeline.

Critics of the Line 9 project say the pipeline should not be approved to ship bitumen because of the likelihood of a rupture and the adverse impacts further expansion of the tar sands will have on climate change and the people and environment of northern Alberta.  

The NEB – Canada’s independent energy regulator – will most likely make their recommendation on Line 9 in January 2014. The federal government can override any decision made by the NEB.

*Anishinaabe, Haudenosaunee, and Lenape are the names for the “Ojibwe”, “Six Nations”, and “Delaware” in their respective languages. Deshkon Ziibi is the Anishinaabe name for “Chippewas of the Thames”. 

Image Credit: Environmental Defence, Enbridge

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