Chippewas of Thames not backing down from Enbridge

By Jennifer O’Brien

The London Free Press

CHIPPEWA OF THE THAMES ONT-Determined to keep fighting for the environment and the rights of indigenous communities across Canada, a London-area First Nation is refusing to back down after losing its latest legal battle against changes to a controversial 40-year-old oil pipeline.

Critics, environmentalists and aboriginal communities have long railed against the greenlighted changes to Enbridge’s Line 9 saying the plan to increase and reverse the flow of crude oil between Montreal and Sarnia could lead to an environmental catastrophe.

Today, the Chippewas of the Thames First Nation is the last group standing.

But they don’t stand alone in principle. The Chippewas have the backing of the chiefs of Ontario on their bid to fight what they fear could be a precedent-setting decision by the Federal Court of Appeal allowing the Crown to ignore its constitutional duty to consult with First Nations.

With the approval of community members, the band is in the works of applying for what’s called a “leave to appeal” the matter to the Supreme Court. The deadline to file the appeal is Dec. 22.

“We have no choice,” said Chief Leslee White-Eye. “The focus on this particular court case is it’s around inherent rights and around all those things we’ve fought hard to have in the Constitution.”

In a split 2-1 decision this fall, the Federal Court of Appeal dismissed the Chippewas’ last case, which was made on the basis that the Crown violated its constitutional obligation by not consulting with the community before the National Energy Board approved Enbridge’s request to increase and reverse the flow of crude oil through Line 9.

“What it does is, this court case sits there as case law, which strengthens anybody’s ability to circumvent the constitutional obligations of the Crown and dictate how we are consulted and not to include us,” White-Eye said.

Section 35 of the Constitution requires governments to consult with First Nations before allowing industrial development that could impact their land.

“When an aboriginal right is being impacted it triggers a duty to consult by the federal government. Not the National Energy Board, the federal government,” said White-Eye.

Dozens of environmental groups and First Nation communities along Line 9 that runs from Sarnia to Montreal — including Aamjiwnaang, near Sarnia — argued against the changes during 2013 hearings held by the National Energy Board on the proposed changes. Critics have held demonstrations, sit-ins and protests, saying the line already has thousands of cracks and fissures and a crude oil spill could devastate the waterways.

Enbridge officials have said Line 9 has a very good safety record and that the company is committed to ensuring the safety of the public, the environment and the pipeline. The National Energy Board approved Enbridge’s request, tethered with 30 conditions, last year.

White-Eye’s optimism about another appeal is based on the “dissenting statement” filed by Justice Donald Rennie, the one judge who disagreed with the dismissal in October.

“We want to be at the table, working directly with the Crown. . . And to be consulted in a way that considers not only the economic impact, but the cultural, spiritual and other concerns,” said White-Eye.

Though focused on treaty rights, there is a pressing environmental component underlying the band’s challenge.

“This impacts our drinking water. We have an obligation as Anishnabek people to be protecting the wellness of water,” said White-Eye. “The pipeline is 40-years-old and a heavier crude along with reversal could impact the waterways which flow through our traditional territory for generations.”

The line runs through the region and crosses the Thames River in Middlesex Centre, a spot about 35 kilometres away from the reserve but through Chippewas treaty territory.

“We still fish in the Thames River, we use it for recreation, and many from London do, too,” said council member Myeengun Henry, who last year organized a community fishing day at the spot that drew more than 50 people as well as residents who live nearby.

“This (decision) is bringing tar sands oil through our traditional territory. The impact of tar sands could be devastating. It becomes our responsibility should there be a spill and under our understanding that line could burst in a year and a half,” he said.

“Our responsibility as native people is to keep the land healthy.

 

THE FACTS ABOUT LINE 9

  • Sarnia-Montreal crude oil pipeline built in 1975, began operating in 1976
  • 9A portion runs from Sarnia to a pumping station in North Westover, 25 km northwest of Hamilton
  • 9B portion runs from North Westover to Montreal
  • Carbon steel line coated with polyethylene tape
  • Operated by Enbridge, Canada’s largest oil pipeline company
  • Built to ship crude oil west to east, it’s been going east to west since 1998.
  • Flow will now be reversed, running west-east again.
  • Flow will be increased to 300,000 barrels of oil, from 240,000 per day.
  • Will carry mainly light crude oil, but can also ship heavy crude such as diluted oilsands bitumen.

Duty to Consult

The legal fight over proposed changes to the Line 9 oil pipeline is based on the Crown’s constitutional “duty to consult.” In two 2004 decisions, the Supreme Court of Canada stated the Crown has a duty to consult, and where appropriate, accommodate “when the Crown contemplates conduct that might adversely impact potential or established aboriginal or treaty rights,” according to Indigenous and Northern Affairs Canada.

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