Gitxaala lawsuit claims process unlawful in JRP’s Enbridge pipeline recommendation
Elmer Moody, Hereditary Chief of the Wolf Clan of the Gitxaala Nation, looks like a man who remains calm in the eye of a storm. And that may serve him well, as the Gitxaala are battling the government in a lawsuit in the Federal Court of Appeal, which pits them against the National Energy Board and the Joint Review Panel, and ultimately the federal government itself.
The Gitxaala allege that the National Energy Board's Joint Review Panel report on recommending in favour of building Enbridge's Northern Gateway pipeline made serious errors in law and reached a flawed conclusion.
The suit states that the JRP did not properly consider Aboriginal rights and title and did not weigh the public interest. It says concerns raised by the Gitxaala during the JRP hearings were dismissed or essentially ignored by the JRP in its report.
"There needs to be an understanding that the Gitxaala seek to protect the environment, our lifestyle and our culture. We can’t put a value in terms of profit loss margins in terms of our culture," he says.
Years of fishing as a boy with his father in the wild waters of the Hecate Straightmay may account for Moody's focus in a storm which promises only to intensify as the federal government's push to build the Enbridge pipeline continues.
Clarence Innis, 63, Acting Chief of the Gitxaala Nation from the Killer Whale Clan, possesses a similar relaxed, yet focused, manner. Born in Lach Klan, a village of the Gitxaala, he followed in the footsteps of his fishermen parents, who followed their parents in an unbroken line of fishers and gatherers that he says goes back a thousand years.
Moody was born on Dolphin Island in 1968 in the community of Kitkatla, a "pristine community in a pristine territory". The island is connected to Prince Rupert by a passenger ferry that runs twice a week. He spent his childhood on Kitkatla. He left home to get an education and returned home when that was complete. "It’s where I belong," he says. "My father was a commercial fisherman, he was also a trapper. He caught salmon, halibut, row and kill herring. The majority of the male population fished."
Clarence Innis says his memory goes back a little further. He was born in 1950 in Blackfish, where he still lives. "My memory goes back to drag streaming. Each one of the chiefs had streams they harvested their fish out of. They had the right to do it and eventually the government gave them the right to do it. In 1964, they ended that.
"I did harvest year round. Many of our people are doing that right now, harvesting for winter. It depends on what’s in the season--herring, roe and then salmon will be there. In between, seaweeds are coming up. Things will be in season. It’s a cycle that we follow." He spoke of the birds, ducks, seals, and variety of shell fish that populate Kitkala.
"One of those rights that is guaranteed under the constitution was the right to gather resources. We are guaranteed the right to harvest sea resources for food. For the Gitxaala, harvesting is a year round thing," Moody explains.
It was the week of the 25th anniversary of the Exxon Valdez spill when Moody and Innis arrived in Vancouver to meet with the federal government for three days of consultation. The spill was very much on their minds.
Moody remembers watching the news coverage. "It was pure destruction," he says.
Innis recalls the event as well. "Just looking at those pictures, it makes us more determined. We don't want to see this happen in our territory." And this is something the government or Enbridge simply can't guarantee, he says.
"They say they can minimize the risk, but they can’t give a 100 per cent guarantee. And because Enbridge can’t give us a guarantee, we’re faced with destruction of our way of life, our ability to harvest as a way to assure our society continue as it has for thousands of years."
Historically, the Gitxaala have faced numerous threats of "our neighbours wanting to have a piece of that supernatural territory," Moody says.
Now they are facing the most enormous threat yet, the proposed Enbridge Northern Gateway pipeline which, if built, will bring an estimated 200 oil tankers through their territory that includes the Hecate Straight.
If an oil spill happens, Moody says, "we’re faced with destruction of our way of life. Our ability to harvest assures our society can continue as it has for thousands of years. Each of the 209 conditions (that the National Energy Board's Joint Review Panel requires for Northern Gateway to be built) is a reminder that in all likelihood there’s a probability there is going to be a spill.
"Enbridge has said a spill would be a one-in-a-hundred event. But nobody has said that spill is going to be next year or ten years or a hundred years from now. All that we recognize is that there’s going to be a spill. And what Canadian society isn’t recognizing is that that spill is going to have an impact to the Gitxaala and our culture. The destruction of us as a people is really the equivalent of genocide.
"For the majority of society, it’s about industry and development. It’s about process and loss margins. Not the fact that you are potentially going to affect a population of 1,800 that has a lifestyle that has thrived for thousands of years. This is what we seek to protect. Government and industry would say the pipeline is in the national interest, but for the Gitxaala it’s an understanding that our way of life is going to be affected.
Exercising every right available
Moody said his Nation put every resources possible toward presenting their concerns to the federal Joint Review Panel about the threat of an oil pipeline and tankers to their territory.
"We spent $3 million developing our position and putting it forward to Enbridge, the Joint Review Panel (JRP) and the government of Canada," he says.
The two Gitxaala chiefs told me that the nation had submitted 5,000 pages of written evidence to the JRP and nine expert reports. During the hearings, 27 community members testified.
If the project is permitted, it will interfere with the Gitxaala’s rights in numerous ways, they say, including its harvesting rights, governance rights, title, and rights to continue practicing and teaching the Gitxaala culture and tradition. This includes effects from construction, operations, including tanker traffic, and potential spills on its rights, including title, its authority and jurisdiction, its culture, and its very existence as Gitxaala people.
These concerns were submitted as evidence to the JRP. The Gitxaala reports included critiques of the proponent’s risk assessment methodology, oil spill modeling and fate and behaviour of spilled dilbit.
So the Gitxaala were stunned by the unfairness of the rule changes when the federal government passed its omnibus Bill C-38 in 2012. It was the act supposedly to implement the federal budget that year. One of its many measures was to snatch the decision on the Northern Gateway pipeline out of the JRP's hands and give it to the Harper government.
Throughout an extensive interview that continued for two hours, neither of the Gitxaala Nation's two leading chiefs expressed anger at what they described as a incomprehensible injustice. "How does this make you feel?" I asked.
"Determined," Moody answered.
“We’ve never ceded our rights to Canada or anyone else. When we talk about our traditional authority over lands and waterways, Gitxaala hereditary still have jurisdiction over lands and waterways.
The Gitxaala are determined to stop Northern Gateway in its tracks, not through blockades or protests, Moody is careful to stress, but by exercising their rights in every governmental process available to them in Canada.
Link: http://www.vancouverobserver.com/news/gitxaala-versus-enbridge-battling-survival?page=0,0