Despite a wealth of smarts and determination, it’s going to be difficult for Indigenous people to stop the Kinder Morgan pipeline.
Ever since the 2004 Haida Nation decision, the duty to consult and accommodate has proven a powerful tool in the struggle for greater respect for Aboriginal rights and title. Courts have handed Indigenous Peoples numerous significant victories—they have also created a blueprint for overriding Indigenous Peoples’ inherent and constitutional rights.
Last summer’s Gitxaala decision is a case in point. While the Federal Court of Appeal quashed the decisions authorizing the Enbridge pipeline, it also provided the federal government with a simple recipe for approving it—discuss new information with First Nations, consider further conditions and provide reasons for its decision.
The Gitxaala decision, and the federal government’s justification for approving the Kinder Morgan pipeline, underscores the limitations of the duty to consult and accommodate as the basis for reconciliation. All too often, the courts’ message to government has been that as long as you follow the script and your decision is within the realm of possible outcomes, we’ll defer to your decision.
Kinder Morgan is an opportunity for a different ending. It’s an opportunity for the courts to acknowledge the duty to consult’s downward spiral towards procedural oblivion and to take a stand in the name of recognition and respect.
There are two basic elements to stopping the Kinder Morgan pipeline. First, there’s a requirement for the courts to acknowledge the obvious. The pipeline will exponentially increase tanker traffic through the Salish Sea. The risk of an oil spill will increase. However remote the possibility, a major spill will have catastrophic effects on the Indigenous Peoples of the Salish Sea. A major spill runs the risk of extinguishing the very basis for their recognition as distinct Aboriginal Peoples under the constitution.
Second, the courts must acknowledge that in some cases deference, procedural consultation and a ‘balancing of interests’ simply will not do. The very core of Indigenous Peoples’ identity as distinct nations protected by section 35 of the constitution is at stake. There is a limit to government’s authority to endanger the continued existence of Indigenous Peoples. There is a line that cannot be crossed.
The Supreme Court confirmed the underlying principle in 1997 in Delgamuukw and restated it in 2014 in Tsilhqot’in. The importance of an Aboriginal right combined with the potential serious impact of the government decision on the right creates circumstances where a project cannot proceed without Indigenous consent.
The Ktunaxa ski-hill case, heard last month by the Supreme Court, is based on the same principle in the context of the constitutional protection for religious freedom. A project that would destroy an Indigenous People’s identity attracts more than a duty to consult. Such a project cannot be countenanced because it would breach the Crown’s fiduciary obligations to Aboriginal people and the fundamental promise of section 35 to protect and perpetuate distinct Aboriginal Peoples into the future and forever.
Kinder Morgan can be stopped through an act of affirmation. The pending legal challenges provide the courts with an opportunity to confirm that while constitutional rights may not be absolute, the promise of section 35 is inviolate. There are interests that cannot be balanced, risks that cannot be mitigated and lines that cannot be crossed—there are promises that cannot be broken.
Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.
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