Leaders of the West Moberly and Prophet River First Nations are warning that the B.C. provincial government will face a billion dollar lawsuit over treaty violations if it decides to go ahead with the controversial Site C dam.

Chief Roland Willson of West Moberly First Nation said in an interview with DeSmog Canada that the government must factor in a hefty legal settlement when it is looking at the cost of continuing the dam construction, as he says there is no doubt that proceeding with the $9 billion dam would violate the 1899 Treaty 8 agreement.

“We are hoping that (the government) has enough information in front of them right now that Site C will not go forward,” Willson said.

“If they approve it we will file.”

Under Treaty 8, the government of Canada promised to guarantee the rights of local First Nations to hunt, trap, fish and continue their traditional way of life on their land.

The B.C. Utilities Commission report noted that although Treaty 8 First Nations unsuccessfully brought a legal challenge concerning the project's infringement of constitutionally protected treaty rights, the option remains for the nations to file a civil case for damages caused by Site C.

“The courts have addressed administrative law issues including the Crown’s duty to consult but have not addressed whether the Crown, by approving Site C has unjustifiably infringed the Treaty 8 rights," the BCUC panel wrote in its report. "West Moberly and Prophet River First Nations submit that the Crown bears the risk that in the event a lawsuit is commenced, the court will find in favour of Treaty 8 First Nations.”

The BCUC panel also found that B.C. does not need new power for 23 years and, if the province does need the power two decades for now, it could come from the Canadian entitlement under the Columbia River Treaty for a fraction of the cost, so that means there is no overriding reason for violating the First Nation’s treaty, Willson said.

There is also a portfolio of alternatives such as geothermal and conservation that could provide equivalent power, at the same cost without flooding the river valley, said Tim Thielmann of Sage Legal, the law firm representing the two First Nations.

According to court cases, such as the precedent-setting Tsilhqot’in ruling, the province cannot infringe treaty rights without a “substantial and compelling objective.”

“So we don’t see how they can meet the first step in the legal test set out by the Supreme Court of Canada for justifying the project,” Thielmann said.

“There is no substantial and compelling reason for them to build it, so the only reason would be political…The idea of building the most impactful project in Canadian history when there isn’t a need for the power and there are other alternatives, is about as textbook example of failing to meet that test as you could ever imagine,” he said.

The province needs to acknowledge that a treaty lawsuit could mean a soaring price-tag for the dam, Willson said.

“The leading energy expert Robert McCullough estimates that cancelling the dam would save British Columbians about $4-billion. You can make that $5-billion because, if the NDP approves this boondoggle, they’ll force us to seek damages for infringement of our treaty,” he said.

ICYMI: Site C Dam Over Budget, Behind Schedule and Could be Replaced by Alternatives

Previously, the Federal Court of Appeal dismissed a lawsuit opposing the dam by the West Moberly and Prophet River First Nations, but did not answer the question of whether treaty rights were violated, and Thielmann says the case has since been strengthened by the BCUC report.

When First Nations representatives met with Energy and Mines Minister Michelle Mungall and Indigenous Relations and Reconciliation Minister Scott Fraser in Fort St. John last week they warned that in 1975, when the Quebec government tried to build the James Bay Project without First Nations approval, the Cree and Inuit of Northern Quebec were awarded a $225-million settlement.

Given inflation, the value of that today would be about $988 million, according to the Bank of Canada’s inflation figures.

ICYMI: First Nations Chief Hopeful For Stop to Site C, More Balanced Approach to Resource Extraction

The BCUC report also found Site C is over budget and behind schedule. Chief Lynette Tsakoza said in a news release that flooding the land for no useful purpose would violate at least four articles of the United Declaration on the Rights of Indigenous Peoples, which the NDP government has pledged to uphold.

“What UNDRIP requires is free, prior and informed consent,” Tsakoza said.

“Every First Nation opposed this dam when it was first proposed. But if ‘yes’ is the only answer the government will accept, how free is that consent?”

The dam is supported by the McLeod Lake Indian Band, who reached an economic agreement with BC Hydro, but, in addition to West Moberly and Prophet River, the dam is opposed by Dene leaders in the Northwest Territories and the Mikisew Cree of Alberta.

The province has said a decision will be made by the end of the year whether to continue with the project, which was started under the previous Liberal government, or to cancel it and reclaim the land.

Mungall, in an emailed statement answering questions from DeSmog Canada, said “the provincial government will make a decision on Site C that works for families, First Nations, businesses and the sustainability of our environment and economy.”

The meeting last week with Treaty 8 members was part of that commitment, she said.

“We attended meetings to listen and to discuss issues as they relate to Site C,” Mungall said.

“The Treaty 8 meetings were only part of our work to evaluate a very difficult decision that needs to be made.”

ICYMI: NDP Union Heavyweights Come Out Fighting for Site C

But Willson is suspicious that politics and pressure from unions are influencing the NDP government and pushing them towards completing the dam.

Wednesday Premier John Horgan told reporters government is still collecting information about Site C and has yet to make a final decision.

“We’ve heard from people who say the utilities commission work was exemplary, and we’re heard from people who say the utilities commission work was deficient in a number of areas,” he said. “So we have asked for more information.”

The government will hear further commentary on Site C and the BCUC report from a panel of invited experts, including Robert McCullough, Nov. 30.

Willson and Tsakoza have invited Horgan to a feast with community members so he can hear their concerns first-hand and, although Horgan has not yet responded, he has acknowledged the invitation, Willson said.

“I think it is very unlikely he will come, but, if not, we will go to them,” Willson said.

“We know they have a difficult decision, but, sometimes, being a leader is not about doing what makes you popular, it’s about doing the right thing — and the right thing is to cancel this bad project.”

Image: West Moberly Chief Roland Willson at the 2016 Paddle for the Peace. Photo: Jayce Hawkins

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The Supreme Court of Canada has refused to hear an appeal brought by the West Moberly and Prophet River First Nations that argues the federal government failed to consider their constitutionally protected treaty rights when approving the $9 billion Site C dam in northeast B.C.

The rejection by Canada’s highest court has members of Treaty 8 First Nations wondering who bears the responsibility for determining whether or not a major project like Site C infringes on their rights as a treaty nation.

“This is very sad news,” Roland Willson, Chief of the West Moberly, told Desmog Canada.

“We have a treaty that is a part of the Constitution of Canada and there is no legal mechanism to protect the constitution, that piece of the constitution,” he said.

“Every other part of the Constitution they won’t tread on except the part that’s got to do with Indians — they’ll walk all over that.”

Image: Chief Roland Willson at the 2016 Paddle for the Peace. Photo: Carol Linnitt | DeSmog Canada

Infringement of Treaty Rights Not Adequately Considered

Caleb Behn, a former lawyer whose mother belongs to the West Moberly, said the decision has disturbing implications for the promise of reconciliation between the government of Canada and indigenous peoples.

“For the Supreme Court to think this appeal wasn’t even worth hearing confirms to me what my loyalty and that of my grandfather is worth to the Crown,” he said.

Under Treaty 8, the government of Canada promised to guarantee the rights of local First Nations to hunt, trap, fish and continue their traditional way of life on their land.

The West Moberly and Prophet River nations filed a judicial review of Site C in November 2014, saying the federal government failed to determine if the project, which will flood 107 kilometres of Peace River valley, violates those treaty rights.

In January 2017 a federal court ruled the government wasn’t obligated to make that determination, a ruling that puzzled legal experts.

The Supreme Court has now refused to hear the West Moberly and Prophet River First Nations’ appeal of that ruling.

“I’m a Treaty 8 person with a law degree, so I never allowed myself to get truly hopeful, because I’m too familiar with what the law really does to indigenous people, people of colour,” Behn told DeSmog Canada.

“This decision desecrates in my view something much more important that just the decision of the governor in council; this is how little regard sacred treaty, sacred balance, sacred law and natural law are worth in the 21st century,” he said.

A federally appointed Joint Review Panel found Site C would likely cause significant adverse effects on fishing, hunting and trapping in Treaty 8 territory.

The panel — which was instructed not to make a judgment if Site C infringed on treaty rights — found the negative impact of the dam could not be mitigated.

In May of 2016 a group of 250 prominent Canadian academics asked Prime Minister Justin Trudeau to halt construction of Site C so impacts on indigenous peoples could be properly considered.

Image: Site C construction. Photo: Garth Lenz | DeSmog Canada

Civil Suit Can Address Site C Damages After the Fact

Chris Tollefson, executive director of the Pacific Centre for Environmental Law and Litigation, previously told DeSmog Canada the two nations can file a civil case to determine if treaty rights have been infringed.

“If that is the only remedy, that that is not a very efficient or effective remedy,” he said.

“Whose responsibility is it to ensure decision are not made that irrevocably harm constitutionally protected rights?”

Chief Willson said a civil suit may be the only option to determine whether Treaty 8 is violated by Site C. The dam reservoir will flood sacred graves and spiritual sites as well as prized habitat

“There is no mechanism to protect the treaty. All we can do is file for damages now,” Willson said.

“This is the insanity of this whole thing: you can’t file a civil claim until there are damages. We have to sit here and wait until they destroy the valley and then file.”

“So they can approve every hair-brained project that comes up now and they only thing we can do is sue for damages,” Willson said.

“What’s the point of a consultation process?”

Tollefson said relying on a civil suit is a losing battle as long as Site C construction continues.

“You wonder whether that task has been assigned to any arm or branch of government or whether in the end all that is left is for this nation to undertake is a very complicated and lengthy proceeding to pursue that argument — which, without an injunction, will be a futile quest.”

Behn added the legal system plays off the disadvantage of indigenous peoples whose rights have long been undermined through Canada’s colonial past.

“We have to suck it up, wait for damage, and re-enter the fray in the same process that has proven itself to be incapable of providing justice for indigenous people.”

New B.C. Government a Final ‘Hail Mary’ for Fight Against Site C

The promise of a new government in B.C. is Chief Willson’s last hope to stop Site C, he said.

The NDP and Green parties have agreed to work together to topple the B.C. Liberal-led government and send Site C for immediate review with the B.C. Utilities Commission, a process the Liberals vetoed.

“That’s our hail Mary,” Willson said.

“We’re all sitting here praying there’s a vote of non-confidence and it will hit the pause button on Site C and stop what’s going on in Bear Flats,” he said.

“That’s the tragedy of this whole thing, the B.C. government is destroying our valley for a completely unnecessary project.”

NDP Party Leader John Horgan formally introduced a motion of non-confidence in the house, Wednesday and the outcome of that motion, whether a new NDP-led government or a re-election, is expect to be known by Friday.

Update July 4, 2017: The headline of this piece previously stated the case had been 'struck down' by the Supreme Court of Canada. It has been updated to more accurately reflect the legal situation.

Image: Valeen Jules at the 2016 Paddle for the Peace. Photo: Jayce Hawkins| DeSmog Canada

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A caravan of Treaty 8 First Nations fighting the Site C dam arrived in Ottawa Tuesday, calling on Prime Minister Justin Trudeau to halt the $9-billion project they say violates treaty rights.

The group arrives on Parliament Hill after a cross-Canada journey that brought them to the Federal Court of Appeal in Montreal on Monday, where a legal challenge by the West Moberly and Prophet River First Nations was heard.

“Anyone who reads the environmental assessment report can see that the Site C dam is an indisputable threat to our rights,” Roland Willson, chief of the West Moberly First Nation, said.

“Our nations are deeply grateful to all the organizations and individuals whose support has enabled us to continue this battle, but the fact remains that we wouldn’t have to go these lengths if the Trudeau government would act on the promises it has made to uphold our treaty, the Canadian constitution, and the UN Declaration [on the Rights of Indigenous Peoples].”

In July the Trudeau government issued two federal permits for the controversial project, a move that angered a broad coalition of Site C opponents and First Nations that say the permits broke the federal Liberals' promise of a renewed nation-to-nation relationship with First Nations. The permits apparently generated some controversy within the federal Liberal party, with Indigenous Liberal MP Robert-Falcon Ouellette from Winnipeg Centre coming out against the project and questioning whether adequate consultation with First Nations in B.C. was carried out.

Despite growing backlash, Trudeau has stayed quiet on the mega hydro dam. 

Most recently, the Assembly of First Nations came out strongly against the  dam, saying it violates the Canadian constitution, which enshrines aboriginal rights under section 35, as well as the UN Declaration, which has a clause about "free, prior and informed consent."

"Why don't they respect and follow their own constitution? Section 35. Existing aboriginal treaty rights," AFN National Chief Perry Bellegarde said in an interview with the Canadian Press. "It really comes back to building a healthy, respectful relationship with indigenous peoples and we just don't see it happening here in this instance."

.@JustinTrudeau Silent as B.C. #FirstNations Take #SiteC Dam Fight to Federal Court #bcpoli #cdnpoli https://t.co/qQssgjoEHz

— DeSmog Canada (@DeSmogCanada) September 14, 2016

An environmental assessment found the project — which will flood 83 kilometres of Peace River valley and eliminate 5,500 hectares of primarily high-value agricultural land — would have severe, permanent and irreversible impacts on First Nations cultural and territorial practices, but the federal and provincial governments approved it in 2014.

Treaty 8, signed with the federal government in 1899, protects First Nations' right to hunt, fish, trap and gather medicines in perpetuity.

“The Peace River valley is one of the last places we can go out on the land with our elders and learn the stories and traditions that make us who we are,” Helen Knott, a member of the Prophet River First Nation who traveled to Ottawa with other community members, said.

“If governments can get away with simply ignoring our treaty, we’ll soon be left with nothing.”

First Nations fighting the project have received high-profile support from a large consortium of Canadian academics, including the Royal Society of Canada, which agrees the project infringes on indigenous rights.

An independent environmental assessment performed by the academics concluded the dam would “severely undermine” the ability of First Nations to carry out their cultural practices. Their assessment also found Site C is the most environmentally destructive project ever considered under the Canadian Environmental Assessment Act.

In August, international human rights watchdog Amnesty International released a report saying the Site C dam violates indigenous rights. Amnesty called on BC Hydro to halt all construction until legal challenges brought against the project by First Nations are heard in the courts.

The Amnesty report is called “The Point of No Return,” referencing a statement by B.C. Premier Christy Clark that the Site C damwill be brought “past the point of no return" before the next election.

First Nations and local landowners fighting the project hoped the Trudeau government would withhold federal permits, allowing time for legal challenges to make their way through the courts, but that hope was lost when two federal permits were granted in July.

NDP Indigenous and Northern Affairs Critic Charlie Angus joined First Nations leaders on Parliament Hill to condemn the Site C project and the federal government's recent permits.

“Why are we even here? Why is this necessary? We have a Prime Minister that promised a new relationship, a new nation to nation relationship,” Angus said. “We have a justice minister — for the first time ever — a Justice Minister who has been on the record saying a project like Site C runs roughshod over indigenous rights."

“If it’s before the courts, then why the hell did you sign those permits? That’s the question.” 

Lynette Tsakoza, Chief of the Prophet River First Nation, said the whole situation casts a poor light on the environmental assessment process. 

“The federal government’s actions in this case have eroded First Nations trust in regulatory processes that impact upon our rights,” she said.

Craig Benjamin, indigenous rights campaigner with Amnesty International Canada, said Canadians should be angry with the federal government’s treatment of this project.

“Anyone concerned about justice and human rights should be outraged by the federal government’s claim that the wide array of serious harms to First Nations this project would entail are ‘justified,’ especially given the fact that the need for the Site C dam remains in question and less harmful alternatives have never been properly considered,” Benjamin said.

In an unprecedented interview with DeSmog Canada, Harry Swain, chair of the joint federal-provincial panel tasked with reviewing the Site C project, said the government erred in approving the project because there was no demonstrated need for the electricity and alternatives to the dam hadn’t been fully explored.

Swain added the panel was asked to catalogue First Nations treaty and aboriginal rights, “but we were not to pass an opinion on them,” he said.

“We were not to say whether consultation had been adequate and so on and forth. If you are forbidden from talking about that, you can not come to a conclusion about the overall project,” he said.

More than 85,000 signatures calling on the federal government to halt the project have been collected by civil society organizations.

Amara Possian, campaign manager with LeadNow, a democracy advocacy organization fighting Site C said pressure is mounting on the federal government  to address concerns about the project.

“The federal government’s public commitment to a new relationship with Indigenous peoples has clearly resonated with Canadians,” she said.

“But the public is demanding more than just words. They government’s promise to uphold the treaties, the constitution and the UN Declaration requires concrete action when these rights are threatened.”

Image: Prime Minister Photo Gallery

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After years of refusal by the Conservative government, Canada is preparing to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) — a decision that could herald the beginning of a new era in relations between First Nations and the federal government.

In a mandate letter addressed to Minister of Indigenous and Northern Affairs Carolyn Bennett, Prime Minister Justin Trudeau requested the minister “renew the relationship between Canada and Indigenous Peoples.”

The first item on Bennett’s long list of to-dos is to implement the recommendations of the Truth and Reconciliation Commission, starting first with the implementation of the UN declaration.

Implementing the declaration is a big deal for Canada, one of only four countries to not only abstain from voting on the declaration, but to actually vote against it. (The other three are the U.S., which has signaled its intention to revise its position, and New Zealand and Australia, both of which reversed their positions in 2009.)

The declaration, first adopted by the UN in 2007 after 25 years of consultation and deliberation, is meant to “constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.”

Collision of Resource Extraction and First Nations Rights and Title

The declaration, while signalling positive intention to work with First Nations, only lays out principles so it is unclear how it  will impact real decisions on the ground.

“It’s going to be interesting to see what the federal government chooses to move forward on the quickest,” Robert Janes, litigator and First Nations rights and title expert with JFK Law, told DeSmog Canada.

According to Janes, the declaration in an opportunity for the federal government to shift gears when it comes to engagement with First Nations.

“The UN declaration includes quite a bit of discussion around ensuring there are good self-government mechanisms in place — ensuring, for example, that First Nations are able to make internal decisions free from interference from other governments,” Janes said.

“But also that First Nations are given the necessary resources to implement self-government decisions and that they’re entitled to various social rights around services, education, health and general welfare.”

Addressing these concerns within First Nations communities is where the federal government could “make some very quick gains,” Janes said.

However there are some areas where federal involvement may conflict with provincial jurisdiction. Resource development is an obvious example, Janes added.

Janes, who is currently working with the Beaver Lake Cree in their fight against the cumulative impacts of the Alberta oilsands, said that case is a good example of the province’s influence over resources.

“Where it gets tricky…is with many contentious issues, for example, in resource development: respecting treaty rights within resource development, proper compensation for taking First Nations lands, trying to obtain free and informed consent before First Nations lands are developed and even identifying where First Nations lands are.”

Janes added that resource development is primarily a provincial issue and as such “it will be tricky for the federal government to move on those matters in a way that could possibly satisfy UNDRIP and at the same time deal with that division of power.”

“In any cases ongoing, including Beaver Lake, the federal government is as involved as the provinces in fighting the First Nations,” Janes said. “No doubt it has always offended First Nations that in every fight between the provinces and First Nations the Canadian government has shown up — not in a neutral position — but actively participating in defending the provincial government’s position.”

Implementing the UN declaration may give Ottawa the political cover to step back from these fights and occupy a more neutral position.

Janes added there is still a significant amount of room for the government to step into a more proactive role in defending First Nations rights and title.

“If they actually implemented many of those things in [minister’s] mandate, which will be hard — they’re not easy, and not cheap — but if they really started to address those few things, there are many First Nations who would view that as a fundamental change with the federal government “

Long Way to Go to Repair Relationships with First Nations

While a step in the right direction, Canada will have to go much further to truly repair relations with First Nations, according to Clayton Thomas-Muller, campaigner with 350.org and member of the Mathias Colomb Cree Nation, also known as Pukatawagan, in northern Manitoba.

“I think I share in the cautious optimism regarding the Liberal government’s announcement to ratify UNDRIP. I think it’s a bold step in right direction that carries with it the same spirit of the other symbolic actions the government has taken since it swept into power,” Thomas-Muller said.

Signing the declaration is “the bare minimum standard nation states need to adopt to have strong domestic relations with local indigenous populations,” he added.

However, the Liberal government’s support for oilsands expansion and building of pipelines is concerning, Thomas Muller said, especially where development of the oilsands conflicts with First Nations rights and title and Canada’s international climate commitments.

“There’s also concern about how Trudeau will respect the veto right of First Nations while supporting the expansion of tar sands and the building of pipelines,” Thomas-Muller said, adding that, according to Canadian law, it only takes one First Nation to stop a development project.

“Just because 30 out of 40 First Nations say ‘yes’ to a project doesn’t in any way undermine or take away the sovereign right of the other 10 who oppose it.”

“That’s how collective rights work. Each sovereign First Nation has its own sovereign-to-sovereign relation with the Canadian government that Trudeau has to treat in the exact same way.”

Thomas-Muller said at this point the Liberal government has a lot of work to do “to clarify how they will keep their election promises.”

“Now we get to the hard work where the Liberal government needs to lay out their 10-point methodology for how they aim to repair some of the polarity that exists in the discussion around the Canadian economy and indigenous rights and certainly how this relates to the issue of climate change.”

Clayton Thomas-Muller with Eriel Deranger of the Athabasca Chipewyan First Nation (left) and Melina Laboucan-Massimo of the Lubicon Cree Nation (right). Photo by Zack Embree.

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A group of scientists from across North America are calling on the governments of Canada and Alberta to impose a moratorium on future development of the Alberta oilsands.

The recommendation is the result of a consensus document that surveys scientific literature related to the oilsands from across research fields. The clear outcome of the research — as it relates to climate, ecosystems, species protection and indigenous rights — is a need to end oilsands growth, the group states.

“As scientists we recognize that no one can speak with authority to all aspects of this complex topic, which is why we came together to synthesize the science from our different fields,” Wendy Palen, professor of biological sciences at Simon Fraser University, said.

The group of scientists, which include 12 fellows of the Royal Society of Canada, 22 members of the U.S. National Academy of Science, five recipients of the Order of Canada and a Nobel Prize winner, released their consensus position on a website, www.oilsandsmoratorium.org, Wednesday. A ful list of the scientists supporting the moratorium can be found here.

“These decisions are complex,” Palen added, “they transcend national boundaries and national interests and they are far broader than any single scientific study or economic assessment.”

Canada’s Carbon Budget

“Within our carbon budget we have high emission sources such as oilsands and unconventional sources of oil and coal that cannot be developed,” Mark Jaccard, energy and climate economist at Simon Fraser University said.

“Therefor while the existing output of the oilsands should not be shut down tomorrow — we’re not talking about harming the Alberta economy or the jobs that are there now — what the research shows, and that’s why we’re calling for it, is that we shouldn’t be doubling down or quadrupling down on the oilsands,” he said.

The oilsands industry produced just over 2 million barrels of oil per day (bpd) in 2014. The most recent projections released this month from the Canadian Association of Petroleum Producers projects oilsands production to grow to more than 4.2 million bpd by 2030.

In 2013 Canada’s National Energy Board forecasted 5 million bpd by 2035, although falling oil prices have altered most projections.

Jaccard said other forecasts see production skyrocketing to 6 or 9 million bpd.

“None of this needs to be done,” he said.

Alberta Taking on Too Much Risk

Thomas Homer-Dixon, Professor at the Balsillie School of International Affairs at the University of Waterloo said the call for a moratorium shouldn’t been see as an “attack on Alberta.”

“The risks are largest for Alberta in particular continuing on this path,” he said. “This is an ultimately economic dead end because the climate is changing and because there will be, in time, some kind of North American or global pricing regime for carbon.”

Homer-Dixon said a path to “alternative routes for economic development” would involve less risk for Alberta.

“Rather than assuming what we’re suggesting is a risky alternative fraught with uncertainty — which it is in some respects — it’s actually less risky and less fraught with uncertainty in many respects than continuing down the current pathway of doubling down on oilsands extraction.”

This week G7 leaders, including Prime Minister Stephen Harper, released a declaration calling for a total decarbonization of the global economy by 2100 and a dramatic reduction in greenhouse gas emissions by 2050.

Although Canada agreed to these goals in principle, many are left wondering what concrete steps will be taken to reduce Canada’s emissions. The Alberta oilsands are the fastest growing source of greenhouse gas emissions in Canada.

“A moratorium makes a lot of sense”

Homer-Dixon said a carbon-constrained future could have severe effects on Canada and Alberta’s economy if we don’t move into low-carbon sources of energy.

“Far sooner than most Canadians expect we may have trouble selling our fossil fuels to the world,” he said.

David Keith, professor of applied physics and public policy at the Harvard Kennedy School, said there’s a “there’s enormous, direct self-interest here from people who care about a sustainable Alberta economy.”

“I’ve got kids and my own interests here,” he said. “But the more we grow the harder the fall is going to be.”

“If you don’t want to see a crushing downturn and want to see some sort of gradual turn for Alberta —where there’s a healthy Albertan economy when I’m old and my kids are grown — then a moratorium makes a lot of sense, even from a purely self-interested point of view.”

Keith added he doesn’t see a moratorium as the responsibility of industry.

“The fundamental onus is not on proponents,” he said. “The onus is on the regulatory system — the government of Alberta, the government of Canada — to act in the long-term interest of the people they serve.”

Thinking the Oilsands Beyond Climate and Economy

David Schindler, professor of ecology at the University of Alberta, said the group of scientists are making arguments for a moratorium that extend beyond the scope of climate.

The group lists a total of 10 reasons that support a moratorium including broad support for alternative energy and the treaty rights of first nations.

“If you take the focus off carbon dioxide and greenhouse gasses for a minute and look at the other points among our 10, oilsands are really a poster child for unsustainable development,” Schindler said.

He added an additional major concern is the risk pipelines destined to carry diluted bitumen to the British Columbian coast pose to salmon stocks. “They cross hundreds of river channels and particularly in winter when those rivers are covered with ice, you cannot remove spilled oil from under ice.”

He said small spills have caused major problems in the Athabasca River. “The technology for removing that oil from under ice doesn’t exist.”

He said caribou are also disappearing from the oilsands region and expansion of development and pipelines will further exacerbate their recovery.

Ken Lertzman, professor at the school of resource and environmental management at Simon Fraser University, said social justice is yet another reason to support the moratorium.

Lertzman said the production of oil in Alberta and its transit across North America “violates the treaty rights of many indigenous peoples.” He added much of the oilsands development occurs on the traditional territory of First Nations, many of which are still dealing with unresolved land claims.

Both the Athabasca Chipewyan First Nation and the Beaver Lake Cree First Nation have been involved in protracted battles with the Alberta and federal governments to protect their treaty rights and territorial lands from the cumulative impacts of oilsands development.

“Indigenous peoples live on the frontlines of energy development; it’s their rights, livelihoods, health and cultures that are most at risk,” he said.

Image Credit: Kris Krug

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“I do not want to be 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,” Treaty 3 Grand Chief Warren White said in a speech outlining his objections to TransCanada’s proposed Energy East oil pipeline last week.

“I did not come here for consultation. I came here to let everyone know what Energy East is all about…In unity in Treaty 3 we will be the ones to stop this. Our communities, our youth, our leadership are being called on by other nations,” White, while presenting at a public meeting hosted by the Ontario Energy Board in Kenora, Ontario, stated.

TransCanada “low balled” and “tried to pull a fast one” on Treaty 3 chiefs, according to White. The pipeline company agreed to participate in a consultation process based on Treaty 3 Resource Law or Manito Aki Inakonigaawin in Anishinaabe (Ojibwe), but failed to actually engaged in the process. TransCanada was a no-show for a meeting with Treaty 3 chiefs on December 21st last year.

“I am very upset right now and you put that in your report that Energy East, TransCanada whatever you wanna call it, are there for the dollar signs, and nothing about the land, nothing about how we survive,” White said.

"I do not want to be the grand chief that’s remembered as, 'all he wanted was the money.' I do not want to be the grand chief known as the destroyer of the lands, waters, sacred sites, rivers, trees, animals, birds…We are going to get another Grassy Narrows situation, an oil spill will happen no matter how safe you guys say it is.”

If approved, the 1.1 million barrel a day pipeline stretching from Alberta to New Brunswick would operate on Treaty 3 territory. The Treaty 3 First Nation represents over twenty-five Anishinaabe First Nations whose traditional territory covers an area of northwestern Ontario larger than Newfoundland.

White’s speech was part of the ongoing public consultations Ontario’s energy regulator – Ontario Energy Board – is conducting with communities and First Nations along Energy East’s proposed route in northern and eastern Ontario. The board will be in Ottawa Thursday.

The provincial government claimed it will partly base its position on Energy East in light of the board’s findings. Ontario plans on arguing its case for or against Energy East at the National Energy Board (NEB) hearings on the pipeline project expected to take place later this year.

Ontario has identified seven conditions for its approval of the pipeline. Included is the condition that “proponents and governments” fulfill their constitutional duty to consult with the province’s First Nations on the project.

“When you send me correspondence and I never participated that does not constitute consultation. We keep hearing [from] government about meaningful consultation, the duty to consult. I never consented to be part of this [regulatory] process,” White told the Ontario Energy Board.

The federal government has the constitutional duty to consult with First Nations, Metis and Inuit on projects that may infringe upon their aboriginal and treaty rights according to the Supreme Court of Canada decision in Haida First Nation vs British Columbia in 2004. There is no indication yet that the federal government plans to fulfill this legal duty in the case of Energy East.

White expressed his lack of faith that the Ontario Energy Board and National Energy Board processes are interested in protecting Treaty 3 rights:

“No matter what we say as intervenor or [in] protest to the Ontario Energy Board and National Energy Board we know you are still going to move forward [with the pipeline], but without our consent,” White said.

Ontario, although calling itself a “climate leader,” has come under fire recently from pipeline critics for weakening its stance on Energy East. Premier Kathleen Wynne announced last December the province would not take into account the potential upstream greenhouse gas (GHG) emissions of Energy East when deciding whether to support the project.

The Ontario Energy Board has also been criticized for its claims Energy East, North America’s largest proposed pipeline project, will likely have a “relatively modest” impact on GHG emissions in Canada.

Image Credit: Ontario.ca

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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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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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The indigenous-led movement that took Canada by storm earlier this year – Idle No More – has called for a national day of action on the 250th anniversary of the first legal document formally recognizing indigenous rights in Canada.

“We must collectively send a clear message that our movement will not stop intervening in Canada’s attempts to conduct business as usual, until our right to free, prior, and informed consent is universally upheld,” reads the announcement for the national day of action on Idle No More’s website.

On October 7th, Idle No More will continue its mission to move the relationship between indigenous and non-indigenous Canadians forward to an era of mutual understanding and respect and demand Canada fulfill its moral and legal obligations to uphold the “nation to nation agreements” made long ago.

The media attention around Idle No More may have died down but the movement never disappeared. Across the country Idle No More actions took place this summer under the banner of “Sovereignty Summer.” Idle No More groups exist in practically every major Canadian city.

Now the movement The Guardian describes as “the best defence against Canada’s resource rush” is set to make its mark on October 7th, the anniversary of the British Royal Proclamation of 1763. The Proclamation is the basis of many indigenous rights and land claims in Canada – past and present.

Idle No More grew out of teach-ins organized by four Saskatchewan women on the weakening of environmental legislation and infringements on indigenous rights through the passing of federal omnibus bill C-45 in 2012. The movement exploded last winter into months of protests such as Chief Theresa Spence’s hunger strike and other actions held in Canada and around the world.

Idle No More founders: Sheelah McLean, Nina Wilson, Sylvia McAdam, & Jessica Gordon. 

At the heart of Idle No More’s struggle is the spirit of the “nation to nation agreements” or treaties between the British Crown and indigenous peoples to share the lands of Canada equally. The Proclamation of 1763 set out the framework for creating these treaties.

King George III declared in the Proclamation the lands west of Quebec and the Thirteen Colonies (presently US Eastern Seaboard) were the “hunting grounds” of indigenous peoples for their exclusive use. Furthermore, under the Proclamation only the British Crown was permitted to negotiate treaties and buy land in this “Indian Territory.”

Map of borders set by British Royal Proclamation of 1763

Any “rights or freedoms” granted under the Proclamation of 1763 are protected in Section 25 of the Canadian Charter of Rights and Freedoms.

“Treaties are agreements that cannot be altered or broken by one side of the two Nations,” states the Idle No More Manifesto. The consensus of both Nations in the agreement is necessary for any changes to be valid.

Enter bill C-45.

The massive 457-page omnibus bill C-45 removed 99% Canada’s lake and rivers from a protected list under the Navigable Water Protection Act. Amendments to the Indian Act under C-45 now permit the leasing out of reserve land to companies, for example, even if the majority of the First Nation or its band council living on the land in question are opposed. Only majority support at a single community meeting – regardless of how many people attend – is necessary to legalize the lease.

“It’s so clear what the government is doing: The bill opens the land for resource development, for oil pipelines,” said Idle No More co-founder Sheelah McLean in an interview with Yes Magazine.

The federal government did not consult with indigenous peoples over the provisions of C-45 that affected them. Changes to the Indian Act and the Navigable Waters Protection Act unquestionably impact indigenous culture and rights. This lands C-45 on constitutionally shaky ground.

“The Crown [federal or provincial governments] is honor-bound to consult with aboriginal people whose claimed rights might be negatively affected. This duty to consult arises any time the Crown contemplates action that could have such an impact,” said Professor Kent McNeil of Osgoode Hall Law School at York University in a Toronto Star op-ed.

“The implementation of the amendments [in C-45] could result in a slew of litigation as aboriginal people turn to the courts to uphold their constitutionally protected rights,” McNeil concluded. 

Sadly, this was the message about Idle No More many Canadians missed when the movement dominated the media sphere last winter. A promise made many years ago to share the vast lands of Canada equally was broken by the British Crown and its successor, the Canadian government. Idle No More seeks to reinstate that agreement and elevate the relationship between indigenous and non-indigenous to one of mutual understanding, equality and respect.

This message should resonate loud and clear in the Canadian psyche on October 7th.

Image Credit: Idle No More, Canadian Encyclopedia

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