Hereditary Chief Pete Erickson

Pipeline talks excluded First Nations governance

Northern Gateway talks excluded issue of First Nations' governance

  • Oct. 2, 2015 7:00 a.m.

By Laura Kane, The Canadian Press

VANCOUVER – First Nations waging a court battle to overturn approval of the Northern Gateway pipeline project say federal officials refused to discuss their claim of decision-making power over ancestral lands.

Lawyer Cheryl Sharvit told the Federal Court of Appeal in Vancouver that the Nadleh Whut’en and Nak’azdli are not declaring the right to veto resource projects on traditional territories in British Columbia’s Central Interior.

But she said the bands’ asserted authority to govern their lands should have at least been considered by the Crown during consultations on the $7-billion pipeline proposal by Calgary-based Enbridge (TSX:ENB).

“The scale of the potential harm from Northern Gateway in their territory is unprecedented. They have never faced a risk this great, from their perspective, from a single project,” Sharvit said.

Sharvit said the Crown’s refusal to discuss governance rights with the First Nations “does serious damage to the goal of reconciliation and protection of aboriginal rights.”

The Crown excluded the issue from the talks because it decided the question of First Nations’ title and governance would be better dealt with in the treaty process, she said.

Eight aboriginal bands are in the court to argue Canada violated its legal duty to consult with and accommodate First Nations before approving Northern Gateway. More than 200 conditions were attached to the approval.

The 1,200-kilometre twin pipeline would carry diluted bitumen from Alberta’s oilsands to the coastal district of Kitimat, B.C., for overseas shipping.

The court is considering a total of 18 legal challenges during the hearing, which is set to conclude Oct. 8. Its outcome could have far-reaching implications for aboriginal authority over oil and gas projects.

Many First Nations in B.C. have not signed treaties and have unresolved land claims. But they argue a landmark Supreme Court of Canada ruling in June 2014 giving the Tsilhqot’in Nation title to its territory means Ottawa must seek consent from First Nations to approve developments on their lands.

Michael Lee Ross, a lawyer for the Gitga’at on B.C.’s north coast, said the Crown must make a “good faith” effort to win First Nations approval even if their title has not been recognized by a court.

He argued Canada’s failure to seek agreement with the Gitga’at represents a failure to “uphold the honour of the Crown” and promote reconciliation.

Speaking for another coastal nation, the Gitxaala, lawyer Robert Janes said the Crown offered absolutely no consultation on aboriginal title.

“It just mouthed the words that it was giving it ‘deep consultation.’ It gave it no consultation.”

Janes’s submissions drew applause from a packed overflow courtroom of First Nations people, some of whom have travelled from across B.C. to watch the hearing.

Amnesty International, an intervener in the challenges, is asking the three-judge panel to consider international human rights law in their interpretation of Canadian law.

Lawyer Justin Safayeni said the United Nations Declaration on the Rights of Indigenous Peoples sets important standards for First Nations’ consent, regardless of the fact that Canada only endorsed it on a qualified basis and called it an “aspirational document.”

Northern Gateway and the federal government will make legal arguments next week.

Billions of dollars in gross domestic product, tax and royalty revenues are at stake. The company estimates the pipeline will boost Canada’s GDP by $300 billion over 30 years.

Spokesman Ivan Giesbrecht has said Northern Gateway accepts First Nations’ traditional land use rights and remains committed to working with aboriginal communities.

— Follow @ellekane on Twitter.

Just Posted

Moms of those killed by illicit opioids take to B.C. Legislature in call for action

Moms Stop the Harm, a nationwide network of families who have lost loved ones to overdoses rally

Second World War prompts airport construction

And now it’s the busiest airport in the region

Trudeau announces bioregional oceans protection agreement in Prince Rupert

Agreement announced in partnership with 14 central and north coast First Nations

115 new wildfires burning across B.C. due to 19,000 lightning strikes

More fires expected to start today, says BC Wildfire Service officials

B.C. turns up the heat

Environment Canada has issued a special weather statement for most the province due to high temperatures

VIDEO: Canadian toddler caught practising hockey skills in crib

Eli Graveline is getting praise from far and wide as the internet freaks out of cute throwback video

B.C. teacher ends Jeopardy! winning streak, taking home US$69,000

Ali Hasan, from New Westminster, has been gaining fans as a “one-man invasion,” says Alex Trebek

Jett Woo highlights 5 Canucks choices on Day 2 of NHL entry draft

WHL star out of Moose Jaw tabbed in Round 2

In a matter of hours, women in Saudi Arabia will be allowed to drive

Change was announced as a royal decree in 2017 by Crown Prince Mohammen bin Salman

Feds announce measures to protect endangered whale species

Canada’s Whale Initiative is part of the federal government’s $1.5 billion Ocean Protection Plan

COC session vote approves Calgary as potential host for 2026 Olympics

Scott Hutcheson, chair of Calgary’s Olympic bid corporation — called vote a positive step forward

B.C. man wins job he was denied after saying he had depression

Transport Canada has been order to give Chris Hughes a high-level job and nearly $500,000

B.C. soldier shot down a century ago to be honoured

Norman Stuart Harper, of Kamloops, was killed on a bombing mission over Lahr, Germany, in 1918

Trump sends letter to Trudeau calling for increase in NATO defence spending

The letter comes as tensions between Canada and the United States have risen to a dramatic high

Most Read