“First Nations save us again.”
That was the message of a text I received from a friend after they heard of the Federal Court of Appeal’s decision to overturn the Harper government’s approval of the Enbridge Northern Gateway pipeline.
And it’s true: First Nations have borne the social burden once again of calling out undemocratic, law-breaking government actions that threaten the climate, the environment and human health.
Alongside the many First Nations that brought a legal challenge against the Northern Gateway pipeline approval were several environmental organizations that brought attention to the ways the project threatened endangered species and marine life.
But it was the former government’s tragic lack of First Nations consultation that caught the court's attention.
In their ruling, two of the three judges said the government failed to meet even a basic standard for First Nations consultation. In fact, the government all but closed their eyes and stopped up their ears to some of the most basic aspects of First Nations existence.
From the ruling: “The inadequacies — more than just a handful and more than mere imperfections — left entire subjects of central interest to the affected First Nations, sometimes subjects affecting their subsistence and well-being, entirely ignored.”
“Many impacts of the project — some identified in the Report of the Joint Review Panel, some not — were left undisclosed, undiscussed and unconsidered.”
“Ignored.” “Undiscussed and unconsidered.”
It’s extraordinary that some of the most disenfranchised participants in this system were left to fight a major energy infrastructure project — and the undemocratic process that granted its approval — in the courts.
In fact, the mere existence of First Nations people in British Columbia is extraordinary.
That these unique traditional cultures and ways of life have survived the onslaught of Western, industrial, imperial and racist governments and policies in this province is extraordinary.
That they have done so mostly outside a treaty framework, and upon almost entirely unceeded territories, is extraordinary.
That these communities, these individuals, have preserved a cherished, land-based way of life that seems in part the antidote to the poisonous, destructive and extractive impulse of modernity — all while fighting precedent-setting court cases to maintain their right to that life — is extraordinary.
And let’s not forget: the very way First Nations rights and title is enshrined within our constitution is extraordinary.
And the fact that today, in the face of a government that has systematically neglected, silenced and oppressed them, these First Nations have secured a legal victory that will likely benefit us all, is extraordinary.
Legal commentators are already pointing to how this ruling exposes the fundamental inadequacy of our pipeline review process. That is the very same process currently in place for the Kinder Morgan Trans Mountain pipeline — another project local First Nations have been forced to fight in court.
The same failures and inadequacies of consultation have also plague this province’s approval of fracking operations, industrial water use, species at risk management, environmental assessments and the oversight of a nascent LNG export empire.
Treaty 8 First Nations in the Peace Region have also been forced to take the province to court over violations of treaty rights in the face of the destructive Site C dam. There are more violations occurring there than local First Nations have the time or capacity to legally challenge.
Legal battles like the one won for B.C. First Nations today are costly. They drain First Nations of the energies and resources that would otherwise be invested in their communities.
The decision for the Enbridge Northern Gateway pipeline now rests in the hands of the federal government and Prime Minister Trudeau, who recently signed Canada onto the UN Declaration on the Rights of Indigenous Peoples.
Let’s hope, moving forward, First Nations consultation as well as all constitutional and treaty rights, will be made part of this government's decision-making process rather than a shameful afterthought.
Heaven knows it will benefit us all.
Image: Pipeline opponents rally against the Enbridge Northern Gateway pipeline in Vancouver. Photo: Zack Embree