By: Niigaan Sinclair
This isn’t the end of the Trans Mountain pipeline expansion project, but it might be the end of a cycle.
On Thursday, the Federal Court of Appeal rejected the National Energy Board’s approval of the project, stating the NEB failed to consult adequately with First Nations communities. In other words: until this happens, the twinning of the pipeline that carries oil to the West Coast from Alberta cannot be legally built.
This was not the only reason for the decision (the court also found the NEB failed to adequately consider the project’s impacts on marine life), but represented a remarkable development in Indigenous relations.
Let’s examine how Canada has historically done business when it comes to lands and resources claimed by Indigenous communities.
Following the Seven Years' War, when the British defeated the French, King George III claimed dominion over North America in 1763, by making a Royal Proclamation.
This did two things: 1) it defined lands west of British coastal colonies as "Indian Territories" and pronounced the Crown as the primary liaison with Indians, and 2) created a process in which Indians could "freely" sell their lands (basically on terms set by and at a price declared by the Crown) and thus be moved to lands "reserved" for them.
With the stroke of a pen, Indigenous peoples became little more then pawns and land-sellers in a grand acquisition plan.
Coldwater Indian band Chief Lee Spahan, centre, raises an eagle feather before he and other First Nations leaders respond to a Federal Court of Appeal ruling on the Kinder Morgan Trans Mountain Pipeline expansion (Darryl Dyck / The Canadian Press)
This is the legal foundation for Canada, the basis for Canadian land claims and, eventually, treaty-making. Sir John A. Macdonald’s western expansion, the reserve system, and the Indian Act all emerge from the Royal Proclamation of 1763.
While Canada recognizes Aboriginal “title,” the parameters of this title is often framed in a way Canada understands land – as something to be owned, extracted from, and exploited. This is what drives Canadian partnerships with corporations and announcements of mines, pipelines and dams in “the national interest.”
At its core is the premise the Crown controls the lands and lives of Indians and – besides "freely" agreeing to this – they have no say otherwise. (How anyone can "freely" agree to give up freedom is a legal puzzle but, hey, welcome to Indigenous life.)
With the Royal Proclamation in place, Canada proceeded like a bully who barged into a neighbour’s home, threw $5 down, imprisoned the neighbours, declared they "freely" chose this, and started remodelling.
When Indigenous peoples resisted – and did in many ways – laws were created to tighten the grip. Movement was outlawed. Lawyers were banned. Prisons were filled.
Until the 1950s and '60s, Canada never really had to worry about Indigenous resistance or land claims or consultation because the Crown set the rules. Then, things began to change.
Decades of non-Indigenous allies, civil rights leaders, and Indigenous activists bravely fought, organized, and attained law degrees to carve out a small piece in Canada’s 1982 Constitution, entitled Section 35.
Section 35 recognizes and affirms "Aboriginal and treaty rights." This means anything and everything in Canada must consider these rights and cannot override them.
The problem? The Constitution never defines Section 35, and, for almost three decades, the Canadian government has refused to do so, leaving it mostly to the courts.
Cedar George-Parker, back centre, and others listen as First Nations leaders respond to a Federal Court of Appeal ruling on the Kinder Morgan Trans Mountain Pipeline expansion. (Darryl Dyck / The Canadian Press)
While Canada recognizes Aboriginal "title," the parameters of this title is often framed in a way Canada understands land – as something to be owned, extracted from, and exploited. This is what drives Canadian partnerships with corporations and announcements of mines, pipelines and dams in "the national interest."
In response to this, Indigenous peoples evoke a Section 35 claim — and are framed as anti-economy, anti-Canada, or anti-progress. What they’re actually interested in is rights and what’s fair, constitutionally or otherwise.
In this atmosphere, the two sides go to court. Sometimes, Canada agrees Section 35 is relevant and a consultative process happens. Virtually every time – and likely because Canada sets the term of "consultation" – the project is approved.
Years later, usually via dozens of lawyers and millions of dollars spent, the Supreme Court renders a decision. Then things get interesting.
Most Section 35 cases that reach the Supreme Court result in Canada being chastised for not performing it’s constitutional duty to consult. Judges usually demand Canada pay compensation, change the law, or facilitate meaningful consultation before a project can continue.
Sometimes, the Supreme Court will define a bit of Section 35.
Which brings us to Thursday and the Federal Court decision in the case of Tsleil-Waututh Nation v. Canada, regarding the Trans Mountain pipeline expansion project.
In most cases, this decision would signal the end. Former Trans Mountain owner Kinder Morgan would likely just thrown its hands up and refused to spend millions on a project that requires millions more just to get approved.
If Canada is listening, it will hear: Indigenous peoples are not anti-economy, but anti-death; pipelines protesters are land and water protectors; projects in the national interest should produce life, not end it.
The difference is Canada owns this project. The Trudeau Liberals spent $4.5 billion to purchase the pipeline from Kinder Morgan and has vowed to finish it. Some say they have staked their political future on it.
Trudeau has said many times in this mandate his government will act differently with Indigenous peoples. He has used the term "nation-to-nation" when describing his an "era of reconciliation."
Well, here’s his chance. For this pipeline project to proceed, Section 35 will need to be defined and an actual, meaningful consultation – the likes Canada has never seen before – will have to take place.
And, if Canada is listening, it will hear: Indigenous peoples are not anti-economy, but anti-death; pipelines protesters are land and water protectors; projects in the national interest should produce life, not end it.
Imagine that, a Constitution for everyone, not just about proclamations and control.
Maybe, this week’s decision will result in the interruption of a 256-year-old cycle.
Maybe, it will even be a beginning.
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Related to SDG 10: Reduced inequalities and SDG 16: Peace, justice and strong institutions
