Christopher Curtis (Montreal Gazette):
“I think when push comes to shove, if the Mohawk nation comes together to fight this thing, you’re going to see a hell of a force in the path of that pipeline,” says Simon, grand chief of the Kanesatake Mohawk Council. “This land that we’re standing on, we never gave this land up and it’s our duty to protect it, not just for us but for everyone in this country. If you understand our creation myth, the land is the mother of all humanity. The earth is her body. Why would you want to violate that?”
Even as oil prices continue their months-long slide, there are four major pipeline projects in the works across Canada — totalling more than $34 billion in investments — that would link the Alberta oilsands to markets across the globe. And while the projects inch forward, some legal experts say the country’s indigenous peoples represent the only real threat to their development. […]
Through a series of hard-won court battles in the ’80s and ’90s, indigenous peoples have enshrined environmental protection into Canadian law. Under Section 35 of the Canadian Constitution, the federal government has an obligation to consult with and accommodate First Nations affected by pipelines that pass through or near their territory.
The Crown delegates its consultation duties to the National Energy Board — a regulatory body where half the members once drew a paycheque from the oil, gas and pipeline sector. So while the consultation system isn’t perfect, it does provide the only real legal framework for people opposed to the pipeline.
“Whenever there’s been arguments in law about environmental issues, it’s a bit of a crapshoot,” said Signa Daum Shanks, who teaches aboriginal rights classes at York University’s Osgoode Law School. “There’s no language in the Constitution, no real phrases that guarantee environmental protection. But there is Section 35, and there’s no way around that.
“So many times the issue with indigenous peoples comes down to something as simple as: ‘You don’t have the legal right to boss us around they way you’re bossing us around,’ ” said Daum Shanks, who also serves as Osgoode’s director of Indigenous Outreach. “It’s a kind of happy accident for environmental groups. If (they) want to, in a sense, take advantage of the issues that have come up because of indigenous rights, they darn well better say: ‘We’re taking into account indigenous voices when we’re doing this.’ ”
Getting oil to market has been a priority of the Conservative government through three mandates, and the two opposition parties at least tacitly support that agenda. The NEB hasn’t turned down a pipeline proposal in recent history, and judges’ rulings suggest a current tendency by the courts to err on the side of industry. […]
The Pull Together Fund — as it later became known — started with a spaghetti dinner in rural B.C. The event raised $3,000. Subsequent bake sales, movie nights and other community fundraisers kept the fight alive, one $20 bill at a time.
It’s an example of the faith some non-aboriginal environmental groups have placed in First Nations’ hopes of stopping Northern Gateway.
“The interests of British Columbians in not having this pipeline and these tankers on our coast are aligned with the interests of First Nations,” says Tim Pearson, a spokesperson for Sierra Club. “We see that, it’s unfortunate that it’s come to this, but First Nations court challenges are, arguably, the best way to stop these pipelines.”
But there’s no guarantee a court will rule in favour of First Nations. In March, the Supreme Court refused to hear arguments by Quebec’s Innu against the Lower Churchill dam in Labrador. The dam infringes on traditional caribou hunting grounds, a fact that was confirmed by provincial review panels. And yet, the courts decided the economic benefits of the project outweigh any potential harm.
“What you’re seeing, often, is that the Crown is learning from its mistakes, it’s getting better at going through the motions of consultation,” said a B.C. lawyer, who spoke on condition his name not be published. “In many cases, the substance of the consultation doesn’t seem to matter, as long as the government is listening, there are judges willing to give them the benefit of the doubt.”
Asked what she would do if the Heiltsuk’s court case is rejected, Housty doesn’t mince words.
“We’ll fight until we win,” she says. “Canadian law is a system of law, but it isn’t our only system of law. We have what we consider to be a higher law that we derive from our relationship to our territory and to each other.
“If we lay down and let this pass, we’re giving way to something that threatens every aspect of our lives in the territory.”