In the pipelines’ path: Canada’s First Nations lead resistance
Posted by Zig Zag
Christopher Curtis, Montreal Gazette, September 4, 2015
Serge Simon steps out of his truck, saunters across Route 148 and into the bushes.
He hops over a broken lath fence, landing in the shrubs on the other side of it. As he presses forward, Simon makes a show of quickly ducking, as though some wayward farmer just fired a rifle blast overhead.
“We’re trespassing,” says Simon, flashing a mischievous smile. “But the way I see it, this is Mohawk land anyway. If anyone sees us, maybe they’ll freak out and think the natives have come to take back their territory.”
In theory Simon is right. This field, the two-lane highway and nearby Mirabel Airport are stretched across a vast plot of land the king of France ceded to Kanesatake’s Mohawks in 1733. For centuries Simon’s ancestors hunted deer, gathered medicines and buried their dead along the southern banks of the Rivière du Nord.
Of course, in a much more practical sense, Simon is trespassing. The tract of land is privately owned and might one day be used as a route for TransCanada’s Energy East pipeline — a $12-billion structure that would carry oil from Alberta to terminals in Quebec and New Brunswick.
“I think when push comes to shove, if the Mohawk nation comes together to fight this thing, you’re going to see a hell of a force in the path of that pipeline,” says Simon, grand chief of the Kanesatake Mohawk Council. “This land that we’re standing on, we never gave this land up and it’s our duty to protect it, not just for us but for everyone in this country. If you understand our creation myth, the land is the mother of all humanity. The earth is her body. Why would you want to violate that?”
Even as oil prices continue their months-long slide, there are four major pipeline projects in the works across Canada — totalling more than $34 billion in investments — that would link the Alberta oilsands to markets across the globe. And while the projects inch forward, some legal experts say the country’s indigenous peoples represent the only real threat to their development.
Through a series of hard-won court battles in the ’80s and ’90s, indigenous peoples have enshrined environmental protection into Canadian law. Under Section 35 of the Canadian Constitution, the federal government has an obligation to consult with and accommodate First Nations affected by pipelines that pass through or near their territory.
The Crown delegates its consultation duties to the National Energy Board — a regulatory body where half the members once drew a paycheque from the oil, gas and pipeline sector. So while the consultation system isn’t perfect, it does provide the only real legal framework for people opposed to the pipeline.
“Whenever there’s been arguments in law about environmental issues, it’s a bit of a crapshoot,” said Signa Daum Shanks, who teaches aboriginal rights classes at York University’s Osgoode Law School. “There’s no language in the Constitution, no real phrases that guarantee environmental protection. But there is Section 35, and there’s no way around that.
“So many times the issue with indigenous peoples comes down to something as simple as, ‘You don’t have the legal right to boss us around they way you’re bossing us around,’ ” said Daum Shanks, who also serves as Osgoode’s Director of Indigenous Outreach. “It’s a kind of happy accident for environmental groups. If (they) want to, in a sense, take advantage of the issues that have come up because of indigenous rights, they darn well better say, ‘We’re taking into account indigenous voices when we’re doing this.’ ”
Getting oil to market has been a priority of the Conservative government through three mandates, and the two opposition parties at least tacitly support that agenda. The NEB hasn’t turned down a pipeline proposal in recent history, and judge’s rulings suggest a current tendency by the courts to err on the side of industry.
They don’t have the backing of major political parties or corporations but people like Simon are becoming the de-facto face of Canada’s fragmented anti-pipeline movement.
The duty to consult and the oil-centric composition of the NEB are at the heart of a series of legal challenges from British Columbia First Nations to Enbrigde’s proposed Northern Gateway pipeline — which would link the Alberta oilsands with terminals along coastal B.C.
The outcome of these challenges could provide a glimpse into the fate of projects like Energy East, Keystone XL and the Trans Mountain Pipeline.
To gauge how Jessie Housty feels about Enbridge’s Northern Gateway pipeline, look no further than her 3-month-old child.
The boy’s name, Noen, is a contraction of the words “No” and “Enbridge.”
“Yes, that’s what his name means,” says Housty, an elected tribal councillor in B.C.’s Heiltsuk First Nation. “He’s a very pertinent child.”
Whereas companies like Enbridge have a small army of lawyers at their disposal, the anti-pipeline movement leans heavily on people like Housty, who’ve made the struggle their life’s work.
Housty and the Heiltsuk live on Denny Island, about halfway up the cold, jagged coastline between Vancouver and Alaska. Though the island is hundreds of kilometres from Northern Gateway’s proposed terminal, it lies smack in the middle of the shipping channel that would see tankers carry pipeline oil into the Pacific Ocean every day.
With daily shipments expected to peak at 525,000 barrels of crude, Housty worries about the potential for a wreck.
Her concerns may not be ill-founded. Tankers could face gale-force winds, heavy snow, fog and waves the size of football stadiums as they criss-cross between the islands that dot the Hecate Strait. The strait is the fourth-most dangerous body of water in the world, according to Environment Canada.
When she learned about the proposed pipeline, Housty wanted to know what affect a potential spill might have on herring stocks — a staple that has sustained the Heiltsuk for millennia. Community members wondered whether bitumen from a spill could make its way to spawning areas along the coast and infect herring eggs.
“The herring is a food source and a ceremonial object and an object of trade that’s central to who we are,” Housty said in a telephone interview with the Montreal Gazette. “The Supreme Court awarded us the right to these commercial fisheries (in 1996), it’s not something we take lightly.”
The Heiltsuk brought their concerns before the National Energy Board in 2013, hoping to get a substantive answer about the risks this pipeline posed on their traditional territory. To their credit, Enbridge fielded a small army of paid-for technicians, engineers and scientists to address the concerns of the Heiltsuk and dozens of other First Nations.
For all the expertise they brought to the table, however, Housty says that Enbridge, the NEB and the Crown still haven’t answered the herring question.
Housty says they could only provide the Heiltsuk with prediction models on herring stocks. Further compounding Housty’s grievances, the NEB refused to consider the expert testimony of Heiltsuk fisherman who’d spent a lifetime experiencing the effect of depleted herring stocks in the northern Pacific.
Neither the NEB nor Enbridge agreed to be interviewed for this article.
After months of public hearings, the energy board approved Northern Gateway last year — albeit with 209 conditions — and construction of the $8-billion project could begin as early as 2018.
The Heilstuk and six other First Nations, however, will contest the ruling in federal court next month.
“Our most basic concerns weren’t addressed during the consultation phase,” said Lisa Fong, the lawyer representing Heiltsuk First Nation. “The Crown has a duty to consult and accommodate, and that’s not what happened here.”
A federal appeal won’t be cheap, but the B.C. First Nations are prepared to make a stand. Through an alliance with groups like Sierra Club and RAVEN Trust, the seven communities have raised more than $520,000 for their court cases.
The Pull Together Fund — as it later became known — started with a spaghetti dinner in rural B.C. The event raised $3,000. Subsequent bake sales, movie nights and other community fund raisers kept the fight alive, one $20 bill at a time.
It’s an example of the faith that some non-aboriginal environmental groups have placed in First Nations’ hopes of stopping Northern Gateway.
“The interests of British Columbians in not having this pipeline and these tankers on our coast are aligned with the interests of First Nations,” says Tim Pearson, a spokesperson for Sierra Club. “We see that, it’s unfortunate that it’s come to this, but First Nations court challenges are, arguably, the best way to stop these pipelines.”
But there’s no guarantee a court will rule in favour of First Nations. In March, the Supreme Court refused to hear arguments by Quebec’s Innu against the Lower Churchill dam in Labrador. The dam infringes on traditional caribou hunting grounds, a fact that was confirmed by provincial review panels. And yet, the courts decided the economic benefits of the project outweigh any potential harm.
“What you’re seeing, often, is that the Crown is learning from its mistakes, it’s getting better at going through the motions of consultation,” said a B.C. lawyer, who spoke on condition that his name not be published. “In many cases, the substance of the consultation doesn’t seem to matter, as long as the government is listening, there are judges willing to give them the benefit of the doubt.”
Asked what she would do if the Heiltsuk’s court case is rejected, Housty doesn’t mince words.
“We’ll fight until we win,” she says. “Canadian law is a system of law but it isn’t our only system of law. We have what we consider to be a higher law that we derive from our relationship to our territory and to each other.
“If we lay down and let this pass, we’re giving way to something that threatens every aspect of our lives in the territory.”
Should the court battles fail, some indigenous protesters have promised to physically block construction of the pipelines.
This forces energy companies into an uncomfortable position whereby to keep their projects alive they might have to strong-arm men, women and children off their construction sites.
In the wilderness of the B.C. interior, a group of indigenous activists have set up camp in a patch of forest to obstruct three major pipeline projects.
They have prevented developers from entering the territory and say they stand in the way of projects by Chevron, Enbridge and TransCanada. Using pickup trucks, plywood and what appears to be barbed wire, the Unist’ot’en Clan sealed off a wooden bridge that links logging roads along the Wedzin Kwah River.
Chevron uses the gravel roads to cut a path through the dense spruce forest. But their employees are routinely visited by the protesters, who remain peaceful but insist they won’t be evicted from their traditional land.
“I’m not protesting, I’m not demonstrating, I’m occupying our homeland,” said Unist’ot’en clan spokesperson Freda Hudson, in a video posted on the group’s Facebook page. “These are ours, we decide what happens here and we’ve already said no to the projects.”
The Unist’ot’en are members of the Wet’suwet’en First Nation but, it seems, they do not recognize the authority of the nation’s elected tribal council. In fact, the Wet’suwet’en chiefs have publicly distanced themselves from the Unist’ot’en clan as rumours of an impending RCMP raid on the camp began to circulate last week.
The clan subscribes to a traditional, hereditary governance structure that never surrendered its lands to the Crown.
Thousands of kilometres from the mosquito-infested woods of the B.C. interior, in coastal New Brunswick, people like Jason Augustine say they’re willing to risk jail time and bodily harm to stand in the way of Energy East. Augustine was on the front lines of the Elsipogtog protests in 2013, when Mi’kmaq protesters faced off with hundreds of RCMP officers over shale gas development near their territory.
“They had their guns drawn and they were ready to pull the trigger and I wasn’t scared,” said Augustine, a district chief of the Mi’kmaq Warrior Society. “I even told them, ‘Shoot me if you have to because you ain’t stopping me.’”
Ultimately Augustine was beaten, shot with beanbag bullets and thrown in prison for his role in the protests. The fisherman and father of three spent 14 days in solitary confinement and pleaded guilty to assaulting a police officer. And while conditions of his probation prevent him from participating in further direct action protests, he says he’s willing to put everything on the line to protect traditional Mi’kmaq fisheries from a potential oil spill.
“It’s not about me, it’s about what we’re going to leave for our children and our grandchildren,” said Augustine, in a telephone interview with the Montreal Gazette. “We’re peaceful, it’s important that our struggle is a peaceful one but we won’t always turn the other cheek … The Warrior Society isn’t a club or a gang, it’s something sacred. It’s something you’re born into, it was my calling.”
Groups like these terrify oil and gas companies, according to one industry insider.
“To have people physically block construction sites, people who are so ideologically driven that they can’t be talked down — this is our worst nightmare,” said Steve, a project manager with one of Canada’s major energy companies. “We have deadlines to meet and for every day we can’t be advancing a project, it costs us money, lots of money. Do you really think we want to remove these people by force? Do you think we want this to happen? Of course not. It looks terrible and it destroys whatever trust we’ve tried to build.
“We can fight these people in court, we know how to do that,” he continued. “But this is a whole ‘nother ball game and it’s one that makes us very uncomfortable.”
It’s not as though companies like Enbridge and TransCanada haven’t made an effort to win First Nation support.
Enbridge offered First Nations groups a 10-per-cent equity stake in Northern Gateway — which, in the long run, could amount to billions in revenue — and they’ve promised to hire hundreds of aboriginal workers to help build the pipeline.
TransCanada signed some 32 capacity funding agreements with indigenous groups along the Energy East route. Through the capacity funding process, TransCanada pays for impact studies, the First Nations identify any potential harm the pipeline could cause their land and both groups reach some sort of settlement.
Both TransCanada and Enbridge have spent millions of dollars to pay for First Nations to participate in the NEB consultation process and say this funding comes without any strings attached. The participation funding covers transportation fees and the costs of hiring environmental experts — though, critics argue, that money is scarcely enough for First Nations to truly understand the potential impacts of the project on their territories.
“We seek that input so we can meaningfully plan the project, avoid or mitigate potential direct impacts and so that we can answer questions or concerns that come up,” TransCanada stated an email to the Montreal Gazette. “This capacity funding is not tied to the community supporting the project nor is it the end of engagement; opportunities for communities to participate in or contribute input to the project continue throughout the project and beyond.”
Because of confidentiality agreements, it’s unclear exactly how much money changes hands or what TransCanada funds. Some aboriginal leaders — speaking on background — say they’ve had the company pay for community centres, firehouses and other much-needed infrastructure. In return, the companies gain access to community meetings where they can pitch their energy projects to band members.
Former Assembly of First Nations National Chief Phil Fontaine has come out in favour of Energy East. The company is paying Fontaine’s consulting service — called Ishkonigan — a hefty fee to act as a liaison with various band councils. Ishkonigan refused several interview requests from the Montreal Gazette for this story.
Even Simon has accepted money from TransCanada. Last year, the company cut a $15,000 cheque to the Kanesatake Mohawk Council to set up a consultation process with TransCanada.
The council used the money to pay an adviser from the Centre for First Nations Governance but ultimately chose not to engage any further in the process. Simon says he backed out because he was afraid that any information he divulges about traditional Mohawk hunting grounds could later be used against his band in the federal land claims process.
“We showed good faith, we met with TransCanada, we listened to them respectfully but I’m not going prejudice our land claim,” says Simon. “In the meantime, we don’t want any more blood money on our table.”
Simon is still standing in the middle of some field by the highway, projecting his voice over the sound of traffic and the steady hum of a thousand crickets.
“I look at all this empty land here and it breaks my heart,” he says. “Out here, a handful of farmers own more land than my entire community does. We’re backbiting each other over tiny plots of land and you look at all these unused fields. It’s shameful. Now they want to ram a pipeline through it.”
Truthfully, this might not even be the actual site of Energy East. Inside Simon’s Kanesatake office is a small mountain of documents. Somewhere, perhaps beneath the copies of 18th-century treaties and other historical files he keeps on hand, is a detailed map of the proposed pipeline. He couldn’t find it before heading out to Mirabel, but he knows the site is somewhere near the airport and, more importantly, it passes through land claimed by the Mohawks.
Simon’s council has almost no money to fight the project in the courts, and he isn’t exactly a polished politician.
Before he was chief, Simon owned a cigarette shop and before that he cut trees for living. His left arm still bears a massive, jagged scar from the time he nearly hacked it off on the job. That day, Simon says, he lost his footing on a tree branch and accidentally swung his chainsaw into his forearm.
“The saw ripped right into me and stopped just before cutting the tendon in half,” said Simon. “I started to fall, my harness trapped me against the tree and I almost passed out from the blood loss.”
And yet this man — who nearly amputated himself by accident — is rallying support against TransCanada. Soon, he’ll launch a legal fund with environmental group Equiterre, and he’s already secured an alliance with leaders inside Quebec’s Innu and Algonquin nations.
“When these groups get together, then we’re going to go to Equiterre and ask, ‘Can you help us?’ We’ll chip in whatever we can.
“We have a lot of good people behind us, a lot of support. I’m putting everything in here, 120 per cent. This has to stop.”
The most fringe elements of the anti-pipeline movement are willing to be beaten, jailed and risk death for their cause. On the other end of the spectrum, pipeline manufacturers may have the backing of Canada’s political establishment, but there are also billions of dollars at stake.
One thing is clear in the fight over the future of Canada’s resources: something has to give.
Posted on September 5, 2015, in Oil & Gas and tagged alberta tar sands, Enbridge, Enbridge Northern Gateway pipeline, Energy East Pipeline, Keystone XL, Kinder Morgan Trans Mountain pipeline, oil and gas pipelines+Indigenous resistance. Bookmark the permalink. 1 Comment.