Canada’s aboriginals tell Trudeau they can block pipelines
At the heart of the conflict are the rights of aboriginal people, particularly in British Columbia, where many groups never signed treaties
Canadian aboriginal groups and their allies said on Friday they have the power to block proposed oil pipelines on land where they have proven title, dismissing comments by Prime Minister Justin Trudeau who said no community has a veto.
Trudeau told Reuters on Thursday that unanimous consent is not needed for the government to approve pipeline projects to bring Canadian oil to market, even as he pledged consultation with aboriginals and environmentalists who oppose projects.
At the heart of the conflict are the rights of aboriginal people, particularly in British Columbia, where many groups never signed treaties and a 2014 Supreme court decision made clear that in cases where aboriginal title is proven, “consent” is required before major projects can go ahead.
“The record of the federal government where consultation is concerned is abysmal at best,” said Ernie Crey, chief of Cheam First Nation east of Vancouver, adding that it is up to the courts to decide on vetoes.
Crey told Reuters his community is not opposed to development, but they want their rights and needs to be treated with the same gravitas as those of other Canadians.
That concern was echoed by Grand Chief Stewart Phillip of the Union of B.C. Indian Chiefs, who said Trudeau should keep in mind that the economic considerations of the oil industry do not outweigh aboriginal rights.
“Well clearly nothing has changed on our side of the equation. The answer is still ‘no’,” he told Reuters when asked about Trudeau’s comments.
The dispute sets the stage for a battle over key energy infrastructure projects aimed at bringing oil products from the landlocked province of Alberta to tidewater, principally through British Columbia to the Pacific Coast, though other routes have been proposed.
“Well, communities grant permission. Does that mean you have to have unanimous support from every community? Absolutely not,” Trudeau told Reuters on Thursday, saying the decision would be made in the best interest of the country “writ large.”
Trudeau faces intense pressure from Canada's oil sands producers, already hard hit by the plunge in crude prices, and increasingly desperate for new pipelines to get product to international markets, where it can fetch a higher price.
Building those pipelines has proven difficult. Enbridge Inc's Northern Gateway pipeline was approved in 2014, but has not yet been built, delayed by legal and social actions. Kinder Morgan's Trans Mountain expansion, conditionally approved by Canada’s energy regulator on Thursday, appears set for a similar fate.
Some have interpreted “consent” as a de facto veto. But legal experts, while differing on the exact applications of the rule, agree it is not a guaranteed ban.
Robin Junger, a Vancouver lawyer who specializes in aboriginal law, said that even in cases where aboriginal title has been proven, the federal government still has final say on whether a project goes ahead.
“The law is absolutely clear on this, the Supreme Court of Canada has said so many times: Consultation is important, it has to be done in earnest and meaningfully, but it doesn't provide a veto,” he said.
But other lawyers point to wording that says while government is allowed “justifiable infringement” on aboriginal title lands, development must not deprive future generations from exercising their rights to that land.
“In other words, if there were a dilbit (diluted bitumen oil) spill, would future generations be deprived their title lands, if yes, then you have an effective veto,” said Merle Alexander, another Vancouver lawyer specializing in aboriginal law.