Legal backgrounder- The Crown’s approach to First Nations consultation on the Enbridge Gateway Pipeline
The proposed 1,170 kilometre-long Enbridge Gateway Pipeline project would stretch from the Alberta tar sands 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 project proposal engages the jurisdiction and lawful authority of dozens of First Nations, from the Dene and Cree peoples of the Athabasca River basin in the east to the Haida in the west, as well as the nations who rely on the health of the Fraser, Skeena, and Mackenzie Rivers and their tributaries.
Decision-making about this project brings into play section 35(1) of the Canadian constitution, which mandates the reconciliation of “pre-existing Aboriginal sovereignty with assumed Crown sovereignty,” and imposes a duty of honourable consultation and accommodation on the Crown.
The Crown’s decision-making responsibility over the pipeline, which comes from statutes including the Canadian Environmental Assessment Act (CEA Act) and the National Energy Board Act (NEB Act), is different from and subject to its constitutional duty to consult. As a result, the Crown must complete its consultation with First Nations, in a way that fulfills the duty, before it makes a decision on the project.
Affected First Nations are faced with the dual challenges of making their own decisions about the project and ensuring that their decisions are respected by the Crown and third parties. Ensuring the Crown meets its constitutional duties to First Nations is one strategy for doing so.