Aboriginal Enbridge foes have strong legal hand

A stack of rulings have said the Crown must meaningfully consult if decisions infringe on rights and title

Lawyer Greg McDade has handled high-profile aboriginal cases and expects to represent opponents of Northern Gateway pipeline.

Lawyer Greg McDade has handled high-profile aboriginal cases and expects to represent opponents of Northern Gateway pipeline.

Anyone who doubts Enbridge and the federal government face a tough battle ahead in the courts might want to read a decision handed down June 4 in B.C. Supreme Court.

The case pitted the Squamish Nation against Whistler and the provincial government, which approved the resort municipality’s Official Community Plan despite the First Nation’s concern its economic development aspirations there would be unreasonably constrained.

B.C. Supreme Court Justice Bruce Greyell quashed the approval and ordered the province to restart consultations.

The province, relying heavily on the municipality’s consultations with the Squamish, had cut off discussions with the aboriginal group so it could approve the OCP before the 2013 provincial election.

Not good enough, the court ruled, agreeing an arbitrary deadline should not have been imposed.

“While appearing to listen the Crown was, in my view, in fact locked into its position from the beginning and ultimately closed the door to further discussions,” Greyell’s decision states.

It’s easy to imagine a similarly worded legal rebuke unravelling the work of either the National Energy Board in recommending approval of Northern Gateway, or of the federal government’s decision to give it the green light.

Particularly after the Tories passed various legislative changes to streamline the pipeline approval process – specifically limiting how long it can take.

The Squamish Nation decision isn’t an outlier.

There is a stack of rulings by courts high and low that have repeatedly concluded the Crown must meaningfully consult and accommodate aboriginals if a government decision may infringe their constitutionally protected rights and title.

“The case law says First Nations don’t have a veto, but equally it says the Crown has to be open to major changes or even not proceeding with the project in their consultations,” said Greg McDade, a lawyer who has led multiple aboriginal rights challenges and expects to represent bands against Enbridge.

McDade, who also represented the Squamish against Whistler and the province, will speak only in broad terms about the likely legal avenues of attack.

“It certainly does appear that the Harper government has a fixed agenda here regardless of the facts,” McDade said. “The closer the NEB process gets to being a sham or facade, or constrained by government rules, the less likely it is to be accepted as adequate.”

Despite the strong legal hand of First Nations, McDade doesn’t think it will take a judge to end Enbridge’s dream of an oil route to the Pacific.

“The bigger problem is not what the courts say about this, but social licence. I don’t think it’s feasible to build a pipeline in a remote area against the wishes of the First Nations who live there. I think that, more than the court process, is the end of this pipeline.”

 

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Black Press file photo
Moose hit on Hwy 37

The collision happened Saturday (Nov. 21) and three people were taken to hospital

<em>Pixabay</em>
All I want for Christmas is…food!

The Kitimat Northern Sentinel wants to publish your holiday recipes

Cases have gone up in Northern Health in the past week, as they have all over B.C. (K-J Millar/Black Press Media)
Northern Health reports new highest number of COVID-19 cases in one day

Nineteen cases were reported to Public Health last Tuesday (Nov. 17)

(Photo courtesy of LNG Canada)
An aerial shot of Cedar Valley Lodge this past August, LNG Canada’s newest accommodation for workers. This is where several employees are isolating after a COVID-19 outbreak was declared Thursday.
COVID-19 outbreak at LNG Canada Project site

14 employees have tested positive for COVID-19 at this time

FILE – British Columbia provincial health officer Dr. Bonnie Henry wears a face mask as she views the Murals of Gratitude exhibition in Vancouver, on Friday, July 3, 2020. THE CANADIAN PRESS/Darryl Dyck
Masks now mandatory in all public indoor and retail spaces in B.C.

Many retailers and businesses had voiced their frustration with a lack of mask mandate before

Kyle Charles poses for a photo in Edmonton on Friday, Nov. 20, 2020. Marvel Entertainment, the biggest comic book publisher in the world, hired the 34-year-old First Nations illustrator as one of the artists involved in Marvel Voice: Indigenous Voices #1 in August. THE CANADIAN PRESS/Jason Franson
VIDEO: Indigenous illustrator of new Marvel comic hopes Aboriginal women feel inspired

Kyle Charles says Indigenous women around the world have reached out

Prime Minister Justin Trudeau speak to the media about the COVID-19 virus outside Rideau Cottage in Ottawa, Friday, Nov. 20, 2020. THE CANADIAN PRESS/Adrian Wyld
Long-awaited federal rent subsidy program for businesses hurt by COVID-19 opens today

The new program will cover up to 65 per cent of rent or commercial mortgage interest

Join Black Press Media and Do Some Good
Join Black Press Media and Do Some Good

Pay it Forward program supports local businesses in their community giving

An Oceana Canada audit of Canadian fish stocks reveals a growing number with critical populations, calling on Fisheries and Oceans Canada to enact existing commitments. (File photo)
B.C.’s declining fisheries the result of poor DFO management: audit

Oceana Canada calls for follow through on government commitments

Randy Bell. (File photo)
Former northern B.C. mayoral candidate arrested after allegedly refusing to wear mask

Randy Bell handcuffed and given a warning at Bulkley Valley Credit Union in Smithers

James Corden on the Late Late Show talking about BC Ferries on Wednesday, Nov. 18, 2020. (Screenshot)
‘You’ll see it when you see it’: BC Ferries mask graphic gains James Corden’s attention

Turns out, James Corden fans were just as quick as B.C. social media users to pick up on the dual imagery

Most Read