Canadian Indigenous Community Appealing Pipeline Decision for Lack of Consultation

If Enbridge has their way, diluted tar sands bitumen and fracked oil will start flowing eastward through their Line 9 pipeline as early as June 1st. Yet on June 16th the Chippewas of the Thames First Nation’s legal challenge to the National Energy Board’s decision on the pipeline project will be heard in front of a federal appeal court in Toronto. The Anishinaabe community is opposing Enbridge’s project at its base because, they argue, they were not consulted, as is their right and as is the duty of the Canadian government. Their legal challenge is one of many forms that opposition to Line 9 has taken, and it foregrounds the key messages of the opposition: Indigenous nations were not properly consulted, and the pipeline poses a grave threat to the environment.

The prospect of the line being turned on while Chippewas of the Thames First Nation (COTTFN) is still objecting due to lack of consultation does not sit well with the community. On May 21st lawyers for the COTTFN filed an application with the NEB to stay the final Line 9 decision pending the results of their appeal. While affirming their opposition to Line 9 through the courts, their resistance is grounded in traditional knowledge and responsibilities, as band councillor Myeengun Henry explains, “[we] know it is our obligation to protect the land, the environment… our spiritual connection is strong in our community and [we] are strongly opposing this project.”

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The Line 9 project was initiated quietly and rather unremarkably, with a plan, according to Enbridge, to simply reverse the direction of the 40 year old pipeline’s flow from west to east so it would transport oil from Sarnia to Montreal. Indeed, approval in July 2012 for reversing the flow of the first section of the pipeline (9A) passed with little opposition. But concern quickly arose that oil products being shipped west to east were likely going to be changed from light crude to diluted bitumen from the Alberta tar sands and fracked oil from North Dakota. Eventually, Enbridge was forced to confirm that this was to be the case for the whole of Line 9, and the prospect of tar sands bitumen being pumped through an aging pipeline across many rivers and through many communities spurred widespread opposition.

Along with concerns over the substances Line 9 would carry, opposition grew around the fact that the reversal project would impact 18 Indigenous communities—communities which were not consulted in the process of developing and approving this project. During the second round of NEB hearings for Line 9 in October 2013, which examined the reversal of 9B and a change in materials to be pumped through the whole line, the question of consultation was raised by multiple groups, including Indigenous and settler intervenors. Yet despite criticism over lack of consultation, as well as environmental impact, being voiced by groups ranging from band councils to residents’ groups to the Ontario Ministry of Energy, in March 2014 the NEB approved the Line 9 project. COTTFN launched their appeal of the NEB’s decision shortly thereafter.

The reasonable probability of significant impact on an Indigenous community should trigger a full consultation process, and since Enbridge and the federal government shirked this responsibility, COTTFN are taking the matter to court. The rights they are asserting are protected in treaties and the Canadian Constitution, and echoed in international agreements including the United Nations Declaration on the Rights of Indigenous Peoples, which emphasises the need for free, prior, and informed consent. Section 35 of the Constitution affirms the treaty rights of Indigenous peoples, which include consultation regarding projects that would impact upon these rights.

In order to uphold these laws and principles, Enbridge and the federal government would have had to undertake a process of consultation and have obtained the consent of every Indigenous community whose land would be impacted by the Line 9 project. COTTFN maintains in their legal challenge that this was not done, and thus that their rights have been violated, submitting that the NEB “erred in law by approving Enbridge’s application before such an assessment [regarding duty to consult] had been undertaken.”

In their submission to the court, COTTFN notes parallels to the land rights victory of the recent Tsilhqot’in ruling. In that decision, consultation was upheld as essential “where the Crown has real or constructive knowledge of the potential or actual existence of Aboriginal title, and contemplates conduct that might adversely affect it,” with due consideration for accommodation and consent. Referring to the precedent set in that ruling, they suggest that the duty to consult here for Line 9 is on the high end of the spectrum.

At the October 2013 NEB hearings, COTTFN filed documents including a traditional land use study, with the First Nation’s Chief Joe Miskokomon asserting inherent and treaty rights within the same territory occupied by Line 9. As COTTFN filed with the NEB, “Line 9 is located within [COTTFN’s] traditional territory and treaty lands crossing underneath the Thames River, a watershed that [their] members and their ancestors have inhabited and harvested resources from since time immemorial.”

Yet the NEB did not respond to these outstanding concerns regarding consultation. Instead, in their “Reasons for Decision” of the Line 9 approval, the NEB wrote “the Board’s hearing process itself is part of the overall consultative process,” despite the fact that in order to participate, intervenors had to submit a lengthy form and meet approval, with many being denied this opportunity. Additionally, the NEB evidently accepted the process of notification Enbridge undertook as a substitute for consultation.

On May 6th, in responding to a shareholder question at Enbridge’s AGM in Toronto, CEO Al Monaco said, “through this [Line 9] project and all other projects,” the corporation “make[s] it a point of making sure that we’re consulting and engaging communities all along the right of way, particularly for First Nations.” However, their track record demonstrates otherwise. Notification is far from equal to consultation, and Enbridge has come under fire in the past for neglecting to consult.

In 2013, Amnesty International released statement regarding Enbridge’s Northern Gateway project. Amnesty explained that the approval of the project “has ignored crucial protections for Indigenous rights set out in both the Canadian Constitution and international human rights law.” The statement continued “if consultation is based on the premise that the project will proceed regardless, it will not meet the standard of human rights protection required by [law].”

Amnesty’s statement added that “The Supreme Court of Canada have repeatedly stated that there is a mandatory minimum legal duty for governments to carry out meaningful, good faith consultations with Indigenous peoples prior to any decision with the potential to affect their rights” (emphasis added).

Even though these principles have been tested repeatedly at the Supreme Court, they are being rehearsed once again over another industrial project. “Time and time we have to fight, but it is a different day and age now with our understanding. We keep referring back to Section 35 of the Constitution, which is a constitutional responsibility for them to talk to us,” Henry reflects. “Our case is really against the government of Canada for their lack of responsibility.”

The environmental implications are equally concerning, given Line 9’s substantial potential to devastate the land and rivers it crosses. As Henry explains, “The land here in southern Ontario is our spiritual responsibility. The Thames River is one of our major factors, we still hunt, we still fish, we still gather medicines in that region,” adding that other First Nations in the vicinity, even though not directly traversed by Line 9, would be affected by a spill.

Indeed, the prospects for the ecosystems crossed by Line 9 have been cast as dire. Pipeline safety expert Richard Kuprewicz has predicted an over 90% chance of failure in the first 5 years of operation, a statement of risk that, as he tells Desmog Canada, he does not make lightly or often. And a failure of a line carrying dilbit is demonstrably more devastating than of conventional crude. In short time, bitumen sinks in water, while the condensate used to dilute it evaporates, leaving a toxic cloud.

The first test case of a dilbit spill into water was seen in the 2010 spill of Enbridge’s line 6B into the Kalamazoo River in Michigan. Five years and over a billion dollars later, the watershed is still not cleaned up. Earlier this month, Enbridge agreed to add 75 million dollars more to the clean-up costs. There is still no reliable remediation process for dilbit, making any spill a likely disaster. Immediately, when the condensate – a slurry of chemicals concealed as a proprietary secret used to dilute the bitumen – evaporates, it poses a health risk to anyone in the vicinity.

Line 9 has already suffered at least 35 significant spills in its operational history. The switch to dilbit does not bode well for keeping that number where it is. Keystone 1, a tar sands pipeline which has been operational only 2 years, already has up to 95% corrosion, leaving it as thin as a third the thickness of a dime, suggesting that dilbit is particularly corrosive. This potential level of corrosion on top of the 12,000 “anomalies” (defects) already identified on the pipeline propel the chances of another spill on Line 9 into the range of certainty. As concerns COTTFN, this could mean a spill into the Thames River, central to their community and water source for over half a million people. Such potential belies the NEB’s ruling that “any potential Project impacts on the rights and interests of Aboriginal groups are likely to be minimal and will be appropriately mitigated.”

Nonetheless, COTTFN remains optimistic. As Henry considers, “What we are seeing is they know the importance of consultation now, and they are a bit worried. That is why we have this case and we have a good chance of winning it.” In conclusion, Henry states, “When we win this case, it’s going to challenge everybody else who’s trying to do things that will hurt the environment here in our region. We are going to be protectors of our traditional territory and we are going to make the corporations understand that, that they have duties and responsibilities along with the government of Canada.”

On June 16, the rights of Indigenous nations to consultation and free, prior, and informed consent will be asserted in the courts of the settler government of Canada. Indigenous and settler supporters are expected to rally outside the Queen street courthouse.