Consultation or consent?

What is adequate consultation? When has consent been given?

You may have heard the news that the Federal Court of Appeal will soon hear six legal challenges to the approval of the Trans Mountain pipeline project. The challenges will once again focus on the “consultation” with Indigenous peoples directly impacted by this project.

Before taking power in 2015, Justin Trudeau promised his government would not only consult First Nations, but would obtain consent from communities before projects like this one could proceed.

There has never been clear consent for the Trans Mountain pipeline.

The Federal Court has already ruled once that public consultation for this 1,150 km pipeline expansion, which would take bitumen from the tar sands in Alberta to British Columbia for export, was inadequate, and it overturned the original approval for the project.

The federal government, now owner of the pipeline thanks to the use of more than $4.5 billion of public money (with another $9.3 billion expected to be spent on construction costs), started a second consultation process in June. But when the government announced it was approving the pipeline project again, Indigenous peoples argued that the outcome of that consultation was predetermined. They say the government, as owner of the pipeline, has a financial interest that overshadows the public interest.

We should all ask: what is adequate consultation? When has consent been given? Should consultation that simply gathers the feedback people provide be accepted, or does the government have a responsibility to act on when impacted Indigenous nations say no?

These legal appeals are examples of the lengths Indigenous peoples need to go to prove their rights are being trampled and how difficult it is to hold the government and corporations accountable to the law. On the flip side, land and water defenders are being unjustly jailed and fined for simply voicing their dissent. This is a double standard of law enforcement that is difficult to reconcile.

The court ordered the legal challenges be heard quickly and rulings are expected within months.

Thanks to the generous support of people like you, the Council of Canadians is working in solidarity with Indigenous peoples and concerned people and communities to stop this pipeline.


RELATED:

Using Police to Belittle Indigenous Rights

 

Using Police to Belittle Indigenous Rights

Tell those police forces to turn around and face the other way and stand on guard to protect the rights it promised to respect.” —Murray Sinclair

Image result for senator murray sinclair reconciliationSenator Murray Sinclair: “Indigenous land sovereignty is a term you rarely heard in law school when I attended in the 70s, and that continues today.”

I have been giving some thought to the conflicts that arise whenever pipeline expansion or developments occur in a manner that affects Indigenous people and their territories.

One of the major issues centers on the use of police forces to enforce court orders.

The police decision to view Indigenous resistance to corporate encroachment on their lands, especially in the face of court orders, as acts of terrorism, almost automatically results in a decision by police to see the need to take military-type action to overcome Indigenous protests. Such a heavy handed approach violates the need for this country to come to terms with its historical ignorance of and attitude toward the territorial rights of Indigenous peoples that stem from the racist doctrines of discovery and terra nullius.

Such police tactics seem to enjoy a measure of acceptability on the basis that the public are told that people are wrongfully disobeying a court order and should not be allowed to get away with it. Yet even when there is no such order and there is such police behaviour, the level of public denunciation seems muted. Case in point include the police tactics during the G20  Summit in Toronto in 2010.

Legal education is still weak in the area of conflict over Indigenous rights. Courts still see pipeline expansion and corporate development in Indigenous territory as a property issue and not a question of sovereignty, often because that is the way it is originally presented to the courts by corporate lawyers seeking interim injunctions. Judges are either incapable of, or unwilling to, say, “Just hold on here, what about the sovereign rights of the Indigenous people over whose lands you want to do this?”  No one brought such an application before me when I was a judge (we didn’t get a lot of them in Manitoba) but if they had, I would have asked that question.

Indigenous land sovereignty is a term you rarely heard in law school when I attended in the 70s, and that continues today. What’s even more concerning is that it is not discussed in law schools or legal circles as one of the major unresolved legal issues of the day, and on what basis it might be or should be resolved. When it is discussed in courts, generally, it suffers from a weak grasp of the theoretical basis for Indigenous rights as sovereign rights and lapses into an argument over property. We still have a long way to go.

The Royal Proclamation of 1763 recognizes the sovereign and territorial rights of Indigenous people including the right not be disturbed therein or to lose those rights without consent. Courts have been reluctant to see the Proclamation as being protective of Indigenous territory where treaties do not exist and rights have not been ceded. Yet the Royal Proclamation remains as a part of the Constitution of this country. It stands alone and is not part of the “existing” limitation found in Section 35 of the Constitution Act 1982. The Federal Government’s enhanced power position and fiduciary responsibility requires it to defend those principles. I am personally disturbed at the state’s willingness to use police to enforce the property rights of corporations against the unceded sovereign rights of Indigenous people, even in the face of a court order.

They should be telling those police forces to turn around and face the other way and stand on guard to protect the rights it promised to respect. SOURCE

First Nations in B.C. launch new legal appeal against Trans Mountain pipeline expansion

Chief Leah George-Wilson of the Tsleil-Waututh Nation announced at a press conference in Vancouver that they have officially launched their appeal of the approval of the Trans Mountain pipeline.

VANCOUVER—Several First Nations led by Tsleil-Waututh have again launched an appeal against the approval of the Trans Mountain pipeline expansion, alleging that Canada did not conduct a fair consultation with First Nations.

“The federal government’s approval of the pipeline is unlawful and must be quashed,” said Chief Leah George-Wilson of the Tsleil-Waututh Nation at a news conference in Vancouver. She was joined by representatives from five other nations that have filed for a judicial review.

In June, the federal government approved the expansion project for a second time. Last summer, the Tsleil-Waututh Nation and others won a major court case that forced federal authorities to reconsider the environmental risks of the increased tanker traffic associated with the project and undertake further consultation with Indigenous communities.

George-Wilson said it “feels like déjà vu” to announce yet another application for appeal to get a fair consultation process.

“Two and a half years ago, we were here announcing our latest court challenge, which we won,” she said. “Canada had an opportunity to get it right and they did not. We have not seen any significant difference in the consultation process, and in some ways it was worse.”

The First Nations maintain that building the $9.3-billion pipeline expansion is a constitutional violation, “primarily around the failure to satisfy the duty to consult, accommodate and seek consent from First Nations, and regulatory legal errors by the National Energy Board.” SOURCE

Want to help stop the Trans Mountain pipeline and tankers? We’re launching Pull Together, Round 3. But we can’t do it without you!

Yesterday, a joint legal challenge was filed by the Tsleil-Waututh Nation, Squamish Nation, Ts’elxweyeqw tribes, Shxw’owhamel Nation, Coldwater Indian Band and Stk’emlupsemc te Secwepemc Nation.

These Indigenous Nations are challenging (again) the federal government approval (again) of the Trans Mountain tarsands pipeline and the 700% increase in tanker traffic it will bring to the coast.

We’ve been here before. And we can do it again.

Yesterday, we heard leaders of these Nations share how this federal decision was the result of another hasty and deeply flawed review process that failed to satisfy the duty to consult, accommodate and seek consent from Indigenous Nations.

Chief Leah George-Wilson of Tsleil-Waututh Nation said, “It was clear that Canada had already made up their mind as the owners of the project⁠—they repeated many of the same mistakes again.”

We heard how the project would involve the digging up of burial grounds and sacred sites in Shxw’owhamel and Stk’emlupsemcte Secwepemc territories. It puts the Coldwater Band’s drinking water at risk. These are just a few of the many harms this project will create on the ground.
So the Nations are going back to court. I’m humbled by their leadership and their commitment to defending their lands and waters.

 

Unist’ot’en Demand Stop Work Order After Cultural and Indigenous Usage Sites Bulldozed

STATEMENT by Wet’suwet’en Access Point on Gidumt’en Territory: Coastal GasLink and RCMP Violating Gidimt’en Sovereignty and Own Agreement.

Image result for Wet'suwet'en Access Point on Gidumt'en Territory RCMP traplines

RCMP and miliary invasion of Wet’suwet’en territory. Photo courtesy: Michael Toledano / unistoten.camp

January 28, 2019 – Over the weekend Coastal GasLink willfully, illegally, and violently destroyed Gidimt’en cultural infrastructure and personal property on Gidimt’en territory without our consent.

This was our infrastructure to be on our land and exercise our land-based culture. Coastal GasLink’s attack on our cultural practices – with RCMP’s active complicity – is an attack on our sovereignty and an attack on our way of life.

In full: https://bit.ly/2FVoFDb

Indian Act to blame for pipeline gridlock in northern B.C.: federal minister

Canada’s Indian Act blamed for creating a gridlock in northern British Columbia where some hereditary clan chiefs say a liquefied natural gas pipeline doesn’t have their consent.

 

VANCOUVER — Canada’s minister of Crown-Indigenous relations is pointing her finger at the Indian Act for creating a gridlock in northern British Columbia where some hereditary clan chiefs say a liquefied natural gas pipeline doesn’t have their consent.

Carolyn Bennett would not say whether she believes the hereditary chiefs of the Wet’suwet’en First Nation have jurisdiction over the 22,000 square kilometres they claim as their traditional territory, saying that it is up to each community to determine its leadership structure.

But she says the situation is an example of why the federal government is working to increase First Nations capacity for self-governance, including a new funding program to rebuild hereditary structures. MORE

The Dzawada’enuxw First Nation files lawsuit against Canada on fish farms dispute

Dzawada’enuxw First Nation community members, including matriarchs, elected and traditional leaders, and artists, were in Vancouver Thursday to announce their decision to sue the Government of Canada.


At a press conference on Jan. 10, 2018, Chief Willie Moon, traditional leader of the Dzwada’enuxw Nation said the ‘zero tolerance’ policy for fish farms in their waters comes from the direction of their matriarchs and membership. Photo by Michael Ruffolo

The First Nation, from Kingcome Inlet, B.C., filed a statement of claim in federal court in Vancouver on Thursday, arguing the federal government authorized licenses for fish farms operating in their waters, without their consultation or consent.

The claim says the fish farm operations pollute and poison wild salmon and infringe on the nation’s constitutionally protected rights. Their case is the first ever rights-based challenge to the federal licensing process that fish farm companies rely on to operate along the coast of B.C. SOURCE