Supreme Court To Hear First Nation’s Case Against Enbridge’s Line 9 Pipeline
The Supreme Court of Canada will hear the Chippewas of the Thames First Nation’s case against Enbridge’s Line 9 tar sands pipeline.
Canada’s highest court of appeal announced last week that it had granted the First Nation leave to appeal the approval of the controversial pipeline by the National Energy Board (NEB).
At issue is whether the Crown exercised its duty to meaningfully consult and accommodate the Chippewas on a project that may potentially impact their Aboriginal and Treaty rights. The Chippewas are challenging the Crown’s paternalistic policies based on denial and extinguishment of rights.
Enbridge applied to the NEB for approval to reverse the flow of a section of Line 9 in order to increase the pipeline’s capacity to ship crude oil through Ontario and Quebec for export through Canada’s east cost. The energy giant also asked the NEB to exempt the project from stringent regulatory requirements. The NEB approved the project last fall, clearing the way for Enbridge to begin shipping 300,000 barrels of Alberta tar sands oil a day to refineries in Montreal.
This video from 2013 discusses Line 9 and Canada’s addiction to tar sands oil:
Video available on Vimeo
Citing, among other things, the state’s failure to inadequately consult with First Nations, the Chippewas challenged the NEB’s decision in the Federal Court of Appeal. Last October, the Federal Court dismissed the appeal. But Justice Donal Rennie dissented, arguing that “the NEB was required to undertake a consultation analysis as a precondition to approving Enbridge’s application.”
The Chippewas then appealed to the Supreme Court of Canada.
“Our members were very distressed by the Federal Court of Appeal’s dismissal of the appeal when they failed to acknowledge our Aboriginal and Treaty rights,” said Leslee White-Eye, the Chief of the Chippewas of the Thames. “The Court did not consider previous decisions, which establish the Crown’s duty to meaningfully consult with and accommodate us on projects that may potentially impact those rights, such as Line 9.”
Environmentalists and First Nations have repeatedly demanded a complete overhaul of the NEB’s pipeline approval process. In a recent joint letter addressed to Prime Minister Justin Trudeau and Catherine McKenna, the Minister of Environment and Climate Change, more than 100 groups argued that the process was “failing to serve the Canadian public interest” and “properly engage and consult with First Nations governments affected by pipeline proposals.”
The groups urged Trudeau’s infant government to commit to this:
In full partnership and consultation with First Nations, Inuit and Metis Peoples, undertake a full review of regulatory law, policies, and operational practices [to] ensure that the Crown is fully executing its consultation, accommodation, and consent obligations on project reviews and assessments, in accordance with its constitutional and international human rights obligations. These include Aboriginal and Treaty rights and the United Nations Declarations on the Rights of Indigenous Peoples.
Environmentalists have also argued that Line 9 poses the risk of catastrophic oil spills on the scale of the 2013 ExxonMobil Pegasus pipeline disaster in Mayflower, Arkansas. That disaster, which spilled more than 318,000 litres of tar sands oil into a local neighborhood and near a lake, occurred after ExxonMobile had reversed its Pegasus pipeline and began shipping tar sands oil through it in 2006.
Environmentalists have also drawn parallels between Line 9 and Enbridge’s Line 6 pipeline, which ruptured in 2010 and spilled millions of litres of diluted tar sands bitumen into Michigan’s Kalamazoo River.
Line 9 runs between Sarnia and Montreal, crossing numerous farms, sensitive ecosystems, 14 First Nation communities and heavily populated neighbourhoods in Ontario and Quebec. The 38-year old pipeline also crosses numerous Ontario rivers flowing into Lake Ontario, the source of drinking water for millions of Canadians.
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