Hereditary Chief Pete Erickson

Pipeline talks excluded First Nations governance

Northern Gateway talks excluded issue of First Nations' governance

  • Oct. 2, 2015 2:00 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.

Just Posted

Terrace’s new aquatic centre to open next week

The Terrace and District Aquatic Centre will offer free admission from Nov. 22 to Dec. 2

Northern First Nations partnership reshaping government’s approach to reconciliation

Kaska, Tahltan and Tlingit First Nations share Premier’s Award for Innovation with ministry

Kitimat arena closed until further notice due to chilling system malfunction

Saturday night’s Terrace River Kings and Kitimat Ice Demons game was cancelled as a result

Nathan Cullen named Parliamentarian of the Year

Skeena-Bulkley Valley MP won the top-title Nov. 5

Terrace council gets to work with three appointments

Representatives were chosen during their first meeting Nov. 13

Saving salmon: B.C. business man believes hatcheries can help bring back the fish

Tony Allard worked with a central coast First Nation to enhance salmon stocks

High-end B.C. house prices dropping, but no relief at lower levels

But experts say home ownership remains out of reach for many for middle- and lower-income families

Worker killed in collision at B.C. coal mine

Vehicle collision occurred at approximately 10:45 a.m. this morning

B.C. asking for tips on ‘dirty money’ in horse racing, real estate, luxury cars

Action follows a Peter German report on money laundering in B.C. casinos

Canadian dead more than a week after plane crash in Guyana: Global Affairs

Global Affairs said it couldn’t provide further details on the identity of the Canadian citizen

Children between 6 and 9 eligible for $1,200 RESP grant from province

BC Ministry of Education is reminding residents to apply before the deadline

Victoria spent $30,000 to remove John A. Macdonald statue

Contentious decision sparked controversy, apology from mayor

Privacy concerns over credit card use for legal online pot purchases

Worries follow privacy breaches at some Canadian cannabis retailers

NEB approves operating pressure increase to repaired Enbridge pipeline

The pipeline burst outside of Prince George on Oct. 9, now operating at 85 per cent

Most Read