Hereditary Chief Pete Erickson

Hereditary Chief Pete Erickson

Pipeline talks excluded First Nations governance

Northern Gateway talks excluded issue of First Nations' governance

  • Oct. 2, 2015 12:00 p.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.

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

Just Posted

FILE – Wet’suwet’en hereditary chiefs have agreed to sign a memorandum on rights and title with B.C. and Ottawa, but elected chiefs are demanding it be called off over lack of consultation. (Thom Barker photo)
Wet’suwet’en hereditary chiefs, Lake Babine Nation get provincial funding for land, title rights

Government says it’s a new, flexible model for future agreements between Canada, B.C. and First Nations.

The property on which a residential school (pictured) that was torn down years ago in Lower Post is to be the location of a cultural centre. (Indian Residential School History and Dialogue Centre photo)
Lower Post residential school building to be demolished, replaced with cultural centre

Project to be funded by federal and provincial governments, Daylu Dena Council

Photo collage of loved ones lost to substance use and overdose. (Photo courtesy Moms Stop The Harm)
B.C. overdose deaths still rising 5 years after public health emergency declared

Moms Stop the Harm calls on B.C. to provide safe supply in response to deadly illicit drug use

Restaurant patrons enjoy the weather on a patio in Vancouver, B.C., Monday, April 5, 2021. The province has suspended indoor dining at restaurants and pubs until at least April 19 in B.C. due to a spike in COVID-19 numbers. THE CANADIAN PRESS/Jonathan Hayward
B.C. sets new COVID-19 daily record with 1,293 cases Thursday

New order allows workplace closures when infections found

The new 3,500 hectare conservancy in Tahltan territory is located next to Mount Edziza Provincial Park. (BC Parks Photo)
New conservancy protects sacred Tahltan land near Mount Edziza Provincial Park

Project is a collaboration between Skeena Resources, conservation groups and the TCG

In this image from NASA, NASA’s experimental Mars helicopter Ingenuity lands on the surface of Mars Monday, April 19, 2021. The little 4-pound helicopter rose from the dusty red surface into the thin Martian air Monday, achieving the first powered, controlled flight on another planet. (NASA via AP)
VIDEO: NASA’s Mars helicopter takes flight, 1st for another planet

The $85 million helicopter demo was considered high risk, yet high reward

New figures show Canadian housing prices outpacing those in other developed countries. (Black Press Media file photo)
Canadian housing prices fastest rising in the world

Relative to 2000, housing prices have risen by a factor of more than 2.5

Russ Ball (left) and some of the team show off the specimen after they were able to remove it Friday. Photo supplied
80-million-year-old turtle find on B.C. river exciting fossil hunters

Remains of two-foot creature of undetermined species will now make its home at the Royal BC Museum

Joudelie King wants to get out and live life to the fullest, but there are places she can’t go because they don’t meet her accessibility needs. (submitted photo)
New online tool provides accessibility map for people with disabilities

The myCommunity BC map provides accessibility info for nearly 1,000 locations in the province

British Columbia’s provincial flag flies in Ottawa, Friday July 3, 2020. THE CANADIAN PRESS/Adrian Wyld
Wildfire fanned by winds near Merritt prompts evacuation alert

BC Wildfire Service says the suspected human-caused blaze was fanned by winds

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

The Rogers logo is photographed in Toronto on Monday, September 30, 2019. THE CANADIAN PRESS/Tijana Martin
Rogers investigating after wireless customers complain of widespread outage

According to Down Detector, problems are being reported in most major Canadian cities

Flow Academy is located at 1511 Sutherland Avenue in Kelowna. (Michael Rodriguez - Capital News)
National fitness group condemns unlicensed Kelowna gym’s anti-vaccine policy

The Fitness Industry Council of Canada says Flow Academy is shining a negative light on the industry

Most Read