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 6:00 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

Saanich police officers were one group of dozens that submitted dance clips to the Greater Victoria Festival Society, to help create the Dance Across Victoria video montage. (Youtube/Screenshot)
WATCH: Saanich police, Victoria mayor bust some moves in new Dance Across Victoria video

Montage features submitted dance clips from across Greater Victoria

Former Oak Bay High Grade 12 student Brandon Kip plays the $100,000 Steinway piano in the Dave Dunnet Theatre. (Black Press Media file photo)
Oak Bay High Alumni Association passes torch to new president

The association has given back more than $70,000 in its 16 years

Saanich’s Malia Brodie competed in the Vancouver qualifiers for the 2020 National Championships. (Photo by BC Sport Karate Snaps)
PHOTOS: Saanich teen awarded $1,800 Karate Canada bursary to pursue officiant certification

Malia Brodie, 18, has black belt, nearly 15 years experience in karate

This photo courtesy of Leanne Grover shows the immediate aftermath of the fire at 7987 Galbraith Cres. that caused extensive damage and displaced six residents. (Leanne Grover/Submitted)
Residents of a Central Saanich duplex ‘fortunate’ to escape Sunday morning fire

Damage to the duplex extensive with one resident said to be ‘catatonic’ after escaping building

After more than a year, open forums will resume at a Saanich committee of the whole meeting on April 19 with up to five residents having the chance to speak for three minutes each about any district-related matter. (Black Press Media file photo)
Public input resumes at Saanich council following lengthy suspension due to pandemic

Up to five residents can present by phone for up to three minutes starting April 19

Vancouver resident Beryl Pye was witness to a “concerning,” spontaneous dance party that spread throughout social groups at Kitsilano Beach on April 16. (Screen grab/Beryl Pye)
VIDEO: Dance party erupts at Vancouver’s Kitsilano Beach to the dismay of onlookers

‘It was a complete disregard for current COVID-19 public health orders,’ says Vancouver resident Beryl Pye

Deputy Prime Minister and Minister of Finance Chrystia Freeland responds to a question during Question Period in the House of Commons Tuesday December 8, 2020 in Ottawa. The stage is set for arguably the most important federal budget in recent memory, as the Liberal government prepares to unveil its plan for Canada’s post-pandemic recovery even as a third wave of COVID-19 rages across the country. THE CANADIAN PRESS/Adrian Wyld
Election reticence expected to temper political battle over federal budget

Opposition parties have laid out their own demands in the weeks leading up to the budget

A syringe is loaded with COVID-19 vaccine at a vaccination clinic run by Vancouver Coastal Health, in Richmond, B.C., Saturday, April 10, 2021. THE CANADIAN PRESS/Jonathan Hayward
B.C. to open up COVID vaccine registration to all B.C. residents 18+ in April

Registration does not equate to being able to book an appointment

Pat Kauwell, a semi-retired construction manager, lives in his fifth-wheel trailer on Maxey Road because that’s what he can afford on his pension, but a Regional District of Nanaimo bylaw prohibits using RVs as permanent dwellings, leaving Kauwell and others like him with few affordable housing options. (Chris Bush/News Bulletin)
Rules against RV living hard on Island residents caught in housing crunch

Regional District of Nanaimo bylaw forcing pensioner to move RV he calls home off private farm land

(Black Press file photo).
Multiple stabbings at Vancouver Island bush party

Three youths hospitalized after an assault in Comox

Selina Robinson is shown in Coquitlam, B.C., on Friday November 17, 2017. British Columbia’s finance minister says her professional training as a family therapist helped her develop the New Democrat government’s first budget during the COVID-19 pandemic, which she will table Tuesday. THE CANADIAN PRESS/Darryl Dyck
B.C. finance minister to table historic pandemic-challenged deficit budget

Budget aims to take care of people during pandemic while preparing for post-COVID-19 recovery, Robinson said

Each spring, the Okanagan Fest-of-Ale is held in Penticton. This year, as a result of the COVID-19 pandemic, the festival will not be held. However, beer is still available. How much do you know about this beverage? (pxfuel.com)
QUIZ: How much do you really know about beer?

Put your knowledge to the test with this short quiz

Lord Tweedsmuir’s Tremmel States-Jones jumps a player and the goal line to score a touchdown against the Kelowna Owls in 2019. The face of high school football, along with a majority of other high school sports, could significantly change if a new governance proposal is passed at the B.C. School Sports AGM May 1. (Malin Jordan)
Power struggle: New governance model proposed for B.C. high school sports

Most commissions are against the new model, but B.C. School Sports (BCSS) and its board is in favour

Russ Ball (left) and some of the team show off the specimen after they were able to remove it Friday. Photo supplied
Courtenay fossil hunter finds ancient turtle on local river

The specimen will now make its home at the Royal BC Museum

Most Read