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Aboriginal Law

Legal Backgrounder: First Nations Legal Challenges to Enbridge Pipelines and Tankers Project

Subject(s): 
First Nations, tar sands, Enbridge, pipelines and tankers, energy
Author(s): 
Clogg, Jessica
Summary: 

In a wave of legal filings between July 11 and July 14, 2014 eight First Nations from Haida Gwaii to Yinka Dene territory west of Prince George have set in motion legal proceedings that, combined with 9 court cases filed earlier this year, have the potential to stop or significantly delay the Enbridge Northern Gateway pipelines and tankers project (the “Enbridge Project”). This publication provides details on the legal cases, and several events leading up to the legal cases.

 

Publication Date: 
July 2014
Publisher: 
West Coast Environmental Law
Year: 
2014
Pages: 
2
Date Catalogued: 
Monday, July 14, 2014

Legal Backgrounder Coastal First Nations Declaration and Save the Fraser Declaration

Subject(s): 
Coastal First Nations Declaration, Save the Fraser Declaration
Author(s): 
Clogg, Jessica, Paterson, Josh
Summary: 

In 2010, two unequivocal Indigenous-law based declarations were signed by First Nations, definitively banning tar sands crude oil tankers, pipelines and infrastructure from their territories. Nine First Nations peoples of the Central and North Pacific Coast and Haida Gwaii (the “Coastal First Nations”) signed the Coastal First Nations Declaration (March 2010), and sixty-one First Nations centred in the Fraser Watershed signed the Save the Fraser Declaration (December 2010). Signatories of the Save the Fraser Declaration have since grown to over 100.

These Declarations were prompted by a tar sands megaproject proposed by Enbridge Inc.. The proposed 1,172 kilometre-long Enbridge Northern Gateway tankers and pipelines project would stretch from the Alberta tar sands through the headwaters of the Mackenzie, Fraser and Skeena rivers to a marine terminal at Kitimat and would result in an estimated 225 crude oil and condensate tankers a year travelling through the territories of Coastal First Nations. The majority of Enbridge’s proposed pipeline route is through the territories of First Nations that have banned the pipeline using their own laws. Opposed First Nations now form an unbroken wall from the U.S. border to the Arctic Ocean. The following commentary examines the legal significance of the Coastal First Nations Declaration and the Save the Fraser Declaration.

Publication Date: 
December 2012
Publisher: 
West Coast Environmental Law
Year: 
2012
Pages: 
8
City: 
Vancouver
Date Catalogued: 
Tuesday, December 18, 2012

Environmental Assessment Law for a Healthy, Secure and Sustainable Canada: A Checklist for Strong Environmental Laws

Subject(s): 
Environmental Assessment, Public Participation
Author(s): 
Rachel S. Forbes, Josh Paterson, Jamie Kneen, Stephen Hazell, John Sinclair
Summary: 

Canadians want strong environmental laws, and they deserve an environmental assessment process that delivers on core Canadian values related to the environment, democracy, and responsible development.

This paper outlines a blueprint of what strong environmental assessment legislation must include, at a minimum, to protect those values and ensure wise decisions are made about proposed development through an effective, efficient, inclusive and robust decision making process.

The authors offer ten principles as a non-exhaustive checklist against which legislative proposals on this issue may be evaluated.

 

West Coast Environmental Law is grateful for the generous support of the Law Foundation of British Columbia.
The views expressed in this paper are those of the authors.

Publication Date: 
February 2012
Publisher: 
West Coast Environmental law
Year: 
2012
Pages: 
13
City: 
Vancouver and Ottawa
Date Catalogued: 
Monday, February 20, 2012

Map of BC First Nations declaring Indigenous Law bans on Enbridge and Kinder Morgan tankers and pipelines

Subject(s): 
Enbridge, Kinder Morgan, Tankers, Pipeline, BC First Nations, Map, Indigenous Law
Author(s): 
West Coast Environmental Law
Summary: 

This is a map of combined traditional territories of First Nations who have banned tar sands pipelines and tankers using their indigenous laws.

Publication Date: 
February 2012
Publisher: 
West Coast Environmental Law
Year: 
2012
Pages: 
1
City: 
Vancouver
Date Catalogued: 
Wednesday, February 8, 2012

Enbridge Northern Gateway Pipeline risks for downstream communities and fisheries

Subject(s): 
Enbridge Northern Gateway Pipeline, risks, fisheries, pipeline, condensate, Fraser River, Skeena River, Kitimat, First Nations
Author(s): 
West Coast Environmental Law
Summary: 

The Enbridge Northern Gateway Pipeline proposal includes two 1,170 kilometre long pipelines from the tar sands in Alberta to the coast at Kitimat. The pipelines will carry an average of 525,000 barrels per day of crude oil to the ocean, and 193,000 barrels a day of condensate, a toxic kerosene-like natural gas by-product used to dilute crude oil so that it can be transported by pipeline, to Alberta.

The pipelines will cross over 1,000 streams and rivers, including the headwaters of the Fraser River (crossing the Stuart, Endako and Salmon Rivers) and the headwaters of the Skeena River (crossing the Morice and Bulkley watersheds). Each of these stream crossings will require two pipeline crossings, as the project consists of twinned pipelines. The project has the potential to seriously affect First Nations downstream of these crossings. The toxic effects of a spill could be felt for hundreds of kilometres, stretching down the entire length of the Fraser River to the sea.

Publication Date: 
February 2012
Publisher: 
West Coast Environmental Law
Year: 
2012
Pages: 
4
City: 
Vancouver
Date Catalogued: 
Wednesday, February 8, 2012

First Nations that have declared opposition to proposed Enbridge tanker & pipeline project

Subject(s): 
Enbridge Northern Gateway Pipeline, First Nations, Coastal First Nations Declaration, Save the Fraser Declaration
Author(s): 
West Coast Environmental Law
Summary: 

This is a list of First Nations and First Nations political organizations that have publicly declared their opposition to the Enbridge tankers and pipelines project. In some cases different levels of government representing the same First Nation may have signed a declaration or otherwise publically communicated their opposition. All of these are listed below, however, counting individual First Nations who are part of larger tribal groups only once yields a total of over 130 ‘opposed First Nations’.

Publication Date: 
February 2012
Publisher: 
West Coast Environmental Law
Year: 
2012
Pages: 
5
City: 
Vancouver
Date Catalogued: 
Wednesday, February 8, 2012

Save BC's Public Lands: Collected Materials Concerning the Campaign to Save BC's Public Lands

Subject(s): 
Forestry, Aboriginal Law
Author(s): 
Clogg, Jessica
Summary: 

In March 1999, the government of British Columbia announced that it was considering privatising and turning over up to 30,000 hectares of public land to logging giant MacMillan Bloedel (MB), and removing up to 91,000 hectares of existing private land from Tree Farm Licences 39 and 44. This deal was an out of court settlement of MB's compensation claim arising from park creation on Vancouver Island. In the settlement agreement the government agrees to pay MB 83.75 million dollars in either land or cash.

The government hired Victoria lawyer David Perry to do a series of public consultations on the settlement agreement. Perry's primary mandate was to answer the question: land or cash? All the consultations were held during a three week period in June 1999. In order to raise awareness about the settlement agreement and to encourage people to attend the Perry consultations, the Campaign for BC's Public Lands worked with local groups to organise information meetings in 11 communities affected by the settlement agreement prior to the consultations.

The Campaign to Save BC's Public Lands is a network of social justice, environmental and labour groups. These groups support a set of core principles about resisting privatisation and promoting community control of forests, in a manner that is fair to all British Columbians, and that respects the rights and title of First Nations.

According to reported statements made by Perry, about 1400 people attended the consultations and he received 1,000 written submissions, mostly opposed to forest privatisation and deregulation of TFL lands. Groups as diverse as the Forest Practices Board, IWA locals, the Council of Canadians, the Wilderness Tourism Association and Greenpeace, as well as various local governments, First Nations and government agencies, expressed deep concerns about the settlement agreement. According to Perry, close to half the people at the consultations felt that MB did not deserve anything at all. Others suggested that perhaps should compensate communities for environmental damage from logging practices.

Mr. Perry's report, the MacMillan Bloedel Parks Settlement Agreement Decision has now been made public, and is available on the Ministry of Forests webpage at www.for.gov.bc.ca. Mr. Perry recommended that none of the proposed land transfers take place.

Publication Date: 
June 1999
Year: 
1999
Pages: 
45
Date Catalogued: 
Tuesday, June 1, 1999

The MacMillan Bloedel Settlement Agreement: Submissions to Mr. David Perry

Subject(s): 
Forestry, Aboriginal Rights
Author(s): 
Clogg, Jessica
Summary: 

West Coast Environmental Law (WCEL) understands that the terms of reference of the MacMillan Bloedel (MB) Settlement Agreement Consultation Program include: determining whether the proposed land transfers to MB can be done without infringing aboriginal rights and title; assessing the implications of the proposed transfers, and providing advice to government respecting which of the transfers under consideration should be implemented.

For the reasons set out below, the position of WCEL is that:

  • the Settlement Agreement is a serious and unjustifiable infringement of aboriginal rights and title;
  • the implications of the proposed transfers are overwhelmingly negative for sustainable forest jobs, biodiversity, fish and wildlife habitat, and community well-being; and
  • none of the transfers under consideration should be implemented

Furthermore, we take the position that MB’s case for compensation in the amount settled on has not been proven. We submit that British Columbia had a solid legal position to oppose the quantum of the MB claim for compensation, and strong legal arguments against paying any compensation for reduced annual allowable cut (AAC). Although a settlement has been reached in the MB case, we have made submissions on this issue because we understand that this settlement agreement may be only the first of many.

 

Publication Date: 
June 1999
Year: 
1999
Pages: 
9
Date Catalogued: 
Thursday, June 10, 1999

West Coast 2009 Party Platform Review on Key Environmental Issues

Subject(s): 
BC Liberal Party, BC NDP, BC Green Party, Environmental Assessment, Fish Farms, First Nations Rights, Forest Policy, Land Use Planning, Climate Change, Toxics, Pesticides
Author(s): 
West Coast Environmental Law
Summary: 

West Coast Environmental Law has reviewed the platforms of the BC Liberal Party, the BC NDP, and the BC Green Party on a number of key environmental issues. We have chosen to focus on party platforms as these are the commitments that the parties themselves have put forward for the voters to consider and allow a balanced comparison between incumbents and challengers. The parties were ranked on a scale of 1 to 5 for each area identified, using best practices recommended by West Coast as a benchmark for comparison. While each party had an opportunity to review and correct or comment on how their positions were characterized, any errors or omissions in the final product remain the sole responsibility of West Coast. 

To read our platform reviews on key environmental issues, please click on a topic below:

Environmental Assessment
Fish Farms
First Nations Rights and Public Engagement

Forest Policy
Forests and Climate Change
Land Use Planning and Forest Practices
Species at Risk
Toxics/Pesticides
 
To read Pembina's review of parties’ platform positions on Climate and Energy, please click here.

 
Ranking system
 

5 Stars:  ­ The proposed measures, taken as a whole, meet West Coast Environmental Law recommendations
 
4 Stars:  ­ The proposed measures, taken as a whole, almost meet West Coast Environmental Law recommendations
 
3 Stars: ­ The proposed measures, taken as a whole, will result in some progress on the issue but are not as ambitious as they should be
 
2 Stars: The proposed measures will maintain the status quo, or reflect progress on some issues counterbalanced by steps backwards on others.
 
1 Star:  ­­ The proposed measures, taken as a whole, represent a step backward and will impede progress on the issue.
 

 
 

Publication Date: 
May 2009
Publisher: 
West Coast Environmental Law
Year: 
2009
Pages: 
1
City: 
Vancouver, BC
Date Catalogued: 
Wednesday, May 6, 2009

West Coast Backgrounder - Joint Review Panel’s Decision on the Scope of the Environmental Assessment for Enbridge Northern Gateway Pipelines

Subject(s): 
Joint Review Panel, Environmental Assessment, Enbridge Pipeline
Author(s): 
West Coast Environmental Law
Summary: 

On January 19, the federal Joint Review Panel released its decision on the List of Issues to be covered in the environmental assessment of the Enbridge Northern Gateway Pipelines, and what additional information Enbridge must provide to the Panel.

The Panel rules that Enbridge has failed to provide adequate information on the risks of pipeline oil spills created by building this pipeline in challenging, remote terrain and sensitive ecosystems, and how it plans to deal with those risks. Enbridge was ordered to provide more evidence as to how it will account for these risks in its project design and response plans. This ruling comes as no surprise, because of the significant and obvious gaps in the information provided in Enbridge’s application, and the many submissions pointing out Enbridge’s failure to provide sufficient information.

However, the Panel decides to reject consideration of a number of key issues raised by numerous First Nations, community groups, conservation groups and individuals. As a result, it appears as though the Panel will overlook critical issues raised by the proposed pipeline, which need to be considered in order to make a fully-informed decision about the Enbridge project. For example, the Enbridge environmental assessment:

  • will NOT consider the broad climate change and greenhouse gas implications of the project and the related increase in tar sands production, or the impact of the Enbridge project on Canada’s international commitments to reduce greenhouse gas emissions;
  • will NOT consider the land, water, air, health and social impacts of the increased tar sands developments facilitated by this pipeline;
  • will NOT consider the environmental and climate change impacts of burning the oil and fuel that travels through Enbridge pipelines and tankers; and,
  • will NOT consider the question of whether this tar sands pipeline scheme should be a part of Canada’s energy future, given the need to transition away from fossil fuels.

In the Panel sessions, many people took the position that considering these questions is essential to the credibility of the environmental assessment. While we may not be able to predict exactly how much additional tar sands oil production will result and where, it is certainly foreseeable that this pipeline will drive an increase in production over time – entailing significant environmental, health and social impacts, and contributing to climate change. By leaving these key, big-picture considerations out, the environmental assessment of the Enbridge pipelines will make its decision in the dark.

In addition, nothing in the Panel ruling addresses the serious concerns of First Nations with the process. The JRP does not respect the decision-making authority of Indigenous peoples. The JRP was unilaterally imposed on First Nations by the federal government. Its terms of reference and list of issues to be considered were developed without meaningful consultation. The JRP lacks the authority to fully assess potential impacts on Aboriginal Title and Rights, and there is still no established process outside of the JRP to assess these impacts. As a result of these flaws in consultation, there continues to be significant, ongoing legal risk to the Enbridge project.

Publication Date: 
January 2011
Publisher: 
West Coast Environmental Law
Year: 
2011
Pages: 
7
City: 
Vancouver, BC
Date Catalogued: 
Thursday, January 20, 2011
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