Indigenous legal challenges at Supreme Court put approvals of major energy projects on the line

Dec 9, 2016

Indigenous legal challenges at Supreme Court put approvals of major energy projects on the line

On Wednesday November 30th, the approval of Enbridge's "Line 9" tar sands and fracking pipeline was challenged at the Supreme Court of Canada as the Chippewas of the Thames First Nation, an Anishinaabe community in southern Ontario, asserted that their treaty rights to consultation were never met before the pipeline was approved and activated. In conjunction with the Line 9 case, the Inuit of Clyde River appealed the approval process for exploratory seismic blasting in the waters surrounding their arctic homeland. These challenges engage with vital issues of consultation and reconciliation, and will impact the future of extractive industry projects overseen by the Canadian government.

Both cases question the adequacy of the process of approving energy projects solely through the National Energy Board (NEB). The NEB is an appointed tribunal dedicated to overseeing the approval of energy projects in the country. The Canadian government has maintained that the NEB's hearing and assessment process satisfies their duty to consult as outlined in the Constitution, while Indigenous communities have demanded direct nation-to-nation consultation, arguing that a third party substitute is insufficient.

Chippewas of the Thames First Nation (COTTFN) argued in court that the public hearing process--which they engaged in--is not a substitute for full consultation, and the NEB is not an adequate substitute for the Crown. Enbridge, meanwhile, maintained their view that the NEB process was sufficient. Despite COTTFN's continued assertion that they were not consulted, Line 9 was given final approval by the NEB on December 3, 2015. COTTFN then applied to the Supreme Court to challenge the decision.

"I'm here to represent my nation at the Supreme Court of Canada over Canada's inability or unwillingness to consult with our nation when it comes to poisoning our water and allowing the NEB to make a decision to allow Line 9 to flow tar sands oil through our territory," said Myeengun Henry, a band councillor from COTTFN, commenting outside of the court. As the drums from the afternoon rally pounded in the background, Henry added, "We are here to say that we were not ever once consulted by Canada, which is their obligation under section 35 of the Constitution."

The Clyde River Inuit, too, were clear in their submission to the court that the neither the NEB nor any representative of the federal government consulted with them before the 2014 approval for the "around-the clock" exploratory blasting program by Petroleum Geo-Services Ltd. For this project, like for Line 9, the company partook in activities it considered consultation, such as Q and A's with the community, and responding to information requests, but given the lack of Crown involvement, Clyde River maintains that Canada’s duty to consult was not fulfilled. The community wrote to the federal government during the NEB process outlining its concerns, as did COTTFN, but the government responded in both cases that the process in place was satisfactory.

Speaking outside of the courthouse, Jerry Natanine, a spokesperson for the Clyde River Inuit, underscored the community’s persisting concern over the seismic blasting: "We are a hunting culture, hunting and gathering is our way of life. We hunt sea mammals, land mammals, birds, and all kinds of animals. And if the animals were to be disrupted, killed off or moved away in any way, that would devastate our lives, and we feel that we would go extinct from that."

While the legal argument at times focused on details of process, Scott Robertson, lawyer for COTTFN, maintained the broader political implications of the challenge. Robertson declared in court, "This case at its core is really about Crown and Indigenous relationships. And I would suggest this court has a role in defining what that relationship is." Francis Walsh, lawyer for the Mohawk Council of Kahnawake which intervened in the case, added to this perspective, arguing, "The nation-to-nation relationship, in our view, is always at stake in fulfilling the duty to consult, since it is the cornerstone of reconciliation."

The interventions by energy industry giant Suncor Energy Marketing Inc. and the Province of Ontario also included talk of reconciliation, but both parties sought to maintain their definitions and priorities in the matter rather than following the approaches advanced by Indigenous communities. Suncor’s formulation of reconciliation included industry as a central point of consideration, arguing that principles of remedy in settler law that take into account third parties should be applied, evidently with the same weight, to cases of consultation and accommodation. The fundamental conflict in both legal challenges between Indigenous rights and industry projects illustrates the clash of opinions on this matter. In their factum submitted to the court, Suncor additionally contested the principles of free, prior, and informed consent--a key aspect of the United Nations Declaration on the Rights of Indigenous Peoples--by repudiating the power of communities to deny consent for a project.

Ontario argued for flexibility of terms and processes of consultation, suggesting this was the path to reconciliation. But this view was not echoed by Indigenous participants in the hearing. While the Mohawk Council of Kahnawake argued that consultation needs to be responsive to individual communities, this is not the same as undefined duties of consultation and uncertainty of the status and responsibility of the Crown. In response to these discussions, Indigenous scholar Hayden King, who was in the courtroom, tweeted his observation, "Only on Indigenous issues does the Crown seem to shapeshift so much. Slippery way to get out of constitutional obligations."

The nature of the NEB and its relationship to the Canadian government occupied a substantial portion of Wednesday's hearing. Lawyer Peter Southey of the Office of the Attorney General reflected the confusion around this question in casting the NEB as sort of, but not really, a government body.

A more fundamental question arose in this discussion: what is the Crown? The issue first arose as Supreme Court justice Malcolm Rowe questioned COTTFN’s lawyer, "You keep referring to the Crown. Who is the Crown?" to which Robertson, for COTTFN, responded that he would be referring to the Crown at large, but that in practice, "We don’t know who the Crown was in this case because there was no Crown." This issue was unclear even to the Supreme Court judges, with Chief Justice Beverley McLauchlin demonstrably troubled by the "murky" status accorded the NEB, which she found "worrying." Justices Muldaver and Brown noted their concern that the lack of clarity on this front impacts the ability of affected communities to participate, affirming that knowing what the official consultative process is is essential to effective engagement. The implication of these comments is that if Canada is unsure as to who or what represents the Crown, then it is entirely unreasonable for an Indigenous community to recognise a body of uncertain status as that officially responsible for consultation.

While Southey eventually stated that the NEB is not a direct emanation of the government, further discussion ensued as to whether it was delegated with the task of consultation or not. In court, it was eventually established that no explicit delegation (nor the provision of guidelines or resources to perform adequate consultation) took place. Chief Justice McLauchlin affirmed that the government’s use of the NEB to consult was merely an implicit reliance on the tribunal.

Indeed, the NEB is not designed for the process of consultation. Enbridge's lawyer Douglas Crowther stated at the hearing that the NEB considers rights and concerns brought up by Indigenous communities who participate in their hearings, alongside those of other interventions (such as those from concerned residents and lobbyists like the Canadian Association of Petroleum Producers), and that Enbridge staff perform outreach to Indigenous communities. In practice, however, there are barriers to participating in the hearings, and Enbridge's outreach often only consists of info packets or a voicemail left at the band office, as Enbridge’s own chart of its compliance activities attests. In terms of the duty to consult, this represents yet another layer of distance from the Crown, as Enbridge is implicitly entrusted with undertaking consultation by the NEB, itself implicitly relied on by the government.

Even when communities are able to prepare an intervention within the NEB's limiting framework, there is no expert to hear their concerns. NEB panel members are primarily trained in the energy industry, not Indigenous rights or Canadian treaty responsibilities. Despite hearing about likely impacts on Indigenous rights, as Chippewas of the Thames and others outlined in their interventions, the NEB appears inclined to consider the concerns insignificant. Even as COTTFN challenged the approval at the Supreme Court, the NEB maintains it addressed all concerns in their approval of the pipeline. Rather than meaningful consultation, allowing some Indigenous intervenors to speak at the hearing may be more a mechanism to allow the panel members to tick off their "Aboriginal participation" box and move on without concern for substance. (For one perhaps insignificant but nonetheless telling incident of unthinking box ticking, the authors of this piece, who also intervened at the Line 9 hearings introducing ourselves as settlers, were listed in the NEB's summary as "Aboriginal participants," having focused our intervention on Canada's treaty responsibilities).

Beyond Indigenous rights, the NEB's suitability to assess any projects whatsoever has recently been called into question. In September two of the regulators who approved the Line 9 project, and one involved in the seismic blasting project, were removed from the Energy East pipeline approval process after it was revealed that several NEB members had an off-the-books meeting with a consultant for the pipeline company TransCanada. This revelation adds to existing critiques of the NEB’s over 99% project approval rate and questions of its suitability to perform consultation as addressed in these challenges.

After the hearing drew to a close, Myeengun Henry reflected, "We remain optimistic that our demand for proper consultation will be honoured by the Canadian court, and that our lands and waters will be spared the risks of this dangerous pipeline. But we are also concerned by the apparent lack of understanding of Indigenous treaty rights and the responsibilities of the Canadian government exhibited by multiple parties at today’s hearing. We know that we need to continue to struggle to protect the water and for our rights to be respected."

If the Supreme Court rules in favour of COTTFN and Clyde River Inuit, the approval for the Line 9 and seismic blasting projects would be overturned. More broadly, nation-to-nation consultation--while already required by treaty--could be treated as legally required by Canada’s highest court, changing the future of resource extraction projects in the country. While the arguments were being presented inside, the gathering of hundreds of community members and supporters outside the Supreme Court, spilling out into four additional viewing rooms for the proceedings, demonstrated strong support for the ongoing struggles for Indigenous rights and the protection of water and land, regardless of the Supreme Court's eventual decision.


Rachel Avery and Dan Kellar (@dankellar) were intervenors at the NEB hearings regarding Line 9, and organise in Waterloo region on the issue.

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