Haisla voice concerns on project
The Haisla will not allow Enbridge’s Northern Gateway Project to proceed if it will illegally infringe their constitutionally protected rights.
And they are prepared to go to court to protect those rights.
That was the message from Kitamaat Village chief councillor Dolores Pollard in a letter to the Canadian Environmental Assessment Agency and Enbridge Northern Gateway Pipelines president John Carruthers.
Enbridge’s Northern Gateway project proposes to run two pipelines from Alberta to Kitimat, one carrying crude oil and the other condensate. Having reviewed the information available on the project and the Crown’s proposed regulatory and environmental review process and approach to consultation, Pollard said the Haisla had identified a number of concerns.
“The proposed project would entail placing two pipelines through the Kitamaat River watershed, in the heart of Haisla Nation territory, and building a marine terminal for oil tankers at the head of Kitimat Arm – in close proximity to a number of Haisla Nation reserves and along the shores of the Haisla’s Nation’s marine resource grounds,” she pointed out.
“The potential impacts of oil spills associated with the proposed project are of significant concern to the Haisla Nation,” Pollard added. She also noted Kitamaat Village council had been seeking involvement in the development of “a meaningful process to address Haisla Nation aboriginal rights, including title, within the context of the potential impacts of the proposed project.”
However, the Crown had repeatedly ignored council correspondence requesting a commitment to “adequate and meaningful consultation” – and in doing so had disregarded Aboriginal Rights and Title case law.
“As set out in the Mikisew Cree decision, consultation is not merely a process for First Nations to blow off steam before the Crown proceeds to do what it intended to do all along,” Pollard said.
She noted the federal Crown had set out a process for a Joint Review Panel (JRP) assessment of the project, in a Draft Agreement. That agreement gave the JRP a limited mandate, that being to meet the requirements of the Canadian Environmental Assessment Act (CEAA) and the National Energy Board Act.
However, the CEAA subsections identified in the Terms of Reference component of the agreement did not include any assessment of potential impacts of a project on aboriginal interests that do not have an “environmental” dimension, Pollard said.
“The JRP review process is to be conducted in accordance with the National Energy Board Rules of Practice and Procedure, 1995, making this a quasi-judicial process in which there is no ability for the Panel to engage directly in consultation with First Nations,” she added.
Maintaining the proposed JRP process clearly grouped “Aboriginal people” with “the public”, Pollard said the role of First Nations, including the Haisla, in the JRP process as currently conceived would be that of intervenors.
“Case law recognizes the right of First Nations to ‘a distinct, if not a more extensive’ consultation process,” she pointed out.
Therefore the proposed JRP process failed to acknowledge the constitutional protection afforded to aboriginal rights and the procedural requirements for consultation whenever the Crown considers a decision or activity that has the potential to impact aboriginal interests. While the Draft Agreement referred to a “separate and more detailed communication” setting out the “manner in which the Crown proposes to consult with Aboriginal people”, Pollard said that separate communication simply consisted of a letter attaching a document titled “Approach to Crown Consultation for the Northern Gateway Project”.
That document stated that: “The JRP is the key assessment and decision-making body for the project and has a broad mandate under both the National Energy Board Act and the Canadian Environmental Assessment Act to examine project-related issues. The Canadian Environmental Assessment Agency representing the Crown will lead the initial consultation on the JRP Agreement as well as consultation on the Environmental Assessment Report issued by the JRP.