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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The National Energy Board approved Enbridge’s Line 9 pipeline project Thursday.

"[This] decision shows the system is broken. Line 9 puts millions of people and every waterway in Ontario leading into Lake Ontario at risk,” said Sabrina Bowman, a climate campaigner with Environmental Defence Canada.

Enbridge’s proposal to reverse Line 9 to flow from Sarnia, Ontario to Montreal, Quebec, increase its capacity by 20% and ship oilsands bitumen through the pipeline was approved by the Board (NEB) yesterday, but with thirty conditions. Bowman said the conditions do not protect people living along Line 9 from a spill. Line 9 is a 38-year old pipeline located in the most densely populated part of Canada.

“The Enbridge pipeline 9 reversal with crude oil and diluted Bitumen is not wanted through our Traditional Territory and under the Thames River and we will seek other avenues to protect the land” said Myeengun Henry, a band councilor with Deshkon Ziibi* (Chippewas of the Thames) First Nation of southwestern Ontario.

“We still need to be consulted and we are willing to listen,” Henry told DeSmog Canada.

The federal government thus far has failed to fulfill its legal duty to consult with First Nations in Ontario and Quebec about the Line 9 project. This leaves the door wide open for First Nations of both provinces to challenge the Line 9 decision in court.

“This approval puts people and ecosystems at serious risk. After carefully studying this proposal, international pipeline expert [Richard Kuprewicz] gives a 90% likelihood of rupture within 5 years,” said Canadian folk singer Sarah Harmer who participated in the Line 9 hearings last October. Line 9 goes through her family’s farm in Burlington, Ontario.

Kuprewicz told DeSmog Canada last October existing damage on Line 9 called 'stress corrosion cracking' coupled with the large pressure swings associated with shipping heavy crudes like bitumen make Line 9 “high risk” for a rupture.

Two demands in particular made by critics of the project and the Ontario government were absent from the NEB’s conditions: 1) for Line 9 to undergo a hydrostatic test to determine if the pipeline can operate at its maximum pressure and 2) a third-party independent review of Enbridge’s data on Line 9.

“While the NEB does leave themselves room to order Enbridge to conduct a hydrostatic test, it should have respected this demand of the Province of Ontario outright,” Harmer said from Kingston, Ontario.

“Now the province needs to do their own independent review,” she told DeSmog Canada.

The NEB in its decision stated it wants to review Enbridge’s hydrostatic testing program, and the pipeline company’s updated engineering assessment of Line 9 before deciding whether to order a hydrostatic test.

Aside from not allowing Enbridge to put the Line 9 project into operation immediately, the NEB more or less gave Enbridge everything they asked for.

 “The NEB’s decision is another clear indication that Canada’s long standing environmental safeguards have been gutted to pander to the oil industry,” Bowman of Environmental Defence told DeSmog.

Because Line 9 is an existing pipeline the NEB’s decision is final. Only projects where forty kilometers or more of pipeline are being built require approval from the federal government.

One hundred people have signed an online pledge to support or engage in civil disobedience to stop the Line 9 project.

More on the Line 9 decision to come on DeSmog Canada.

*Deshkon Ziibi is the Anishinaabe (Ojibwe) name for the “Chippewas of the Thames.”

Image Credits: Environmental Defence Canada, Enbridge

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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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