# Native Conflicts vs the Economy



## Rifleman62 (12 Jan 2019)

http://nationalpost.pressreader.com/national-post-latest-edition/20190111

Why Native Conflicts Often Seem Insolvable - National Post - 11 Jan 19 - Kelly McParlaned
    _HEALTHY DOSE OF SCHADENFREUDE TO BE HAD FROM THE TROUBLE IN B.C._

It might not seem immediately evident, but it’s possible the confrontation that has been taking place in a remote northern area of British Columbia will prove to be an important moment in Canada’s long, difficult struggle to come to terms with First Nations bands.
The situation offers a distillation of the dilemma that often makes relations with natives seem insoluble. That is, how can you reach agreements with a community that can’t agree with itself? The dispute between Coastal GasLink, a subsidiary of TransCanada Corp., and some elements of the Wet’suwet’en Nation, rests not with the gas company, the government, the police, the courts or any of the people doing their best to meet all required parameters for dealing fairly and equitably with First Nations. It’s an argument between one set of native leaders and another. It’s also a problem only the natives can solve, and it raises a serious concern over whether Aboriginal communities will ever make serious advances in putting behind them the poverty and despair that plagues so many of their people until they find a way to resolve it.

In this case, the elected representatives of all 20 band councils along the route of a 670-kilometre pipeline have agreed to the plan. And no wonder: it would provide hundreds of millions of dollars worth of benefits, jobs, income and hope, and give the bands an enormous boost from the lands they have fought so hard to protect. But, as anyone with a passing awareness of Aboriginal politics knows, Canada’s First Nations communities are not one big unified family, but a vast, complex, diverse, sometime fractious and often competing universe of interests and agendas. It is rarely clear where the power lies, who speaks for who, and what level of support can be claimed by any individual or group.

There is no overriding governing body to render final decisions when needed, or a judicial system able to issue judgments all parties are compelled to obey. Although Canadian courts make rulings on First Nations questions, it’s a toss-up as to whether they can be enforced. In instance after instance we have seen judges issue orders, only to have them ignored by bands who maintain they’re not bound by “settler” or “colonial” law. The majority does not necessarily rule; a small but determined portion of a larger community can stymie the will of the others. “Our law trumps Canada’s law,” declared Joyce Eagle, in justifying defiance of the B.C. court’s order.

As a result, no agreement can ever be deemed final. There is always the danger a deal struck with good intentions on all sides will come unstuck when the consensus among First Nations members suddenly dissolves over matters non-natives are helpless to affect.

Pandering by Canadian governments at all levels has made a difficult situation far worse. Federal, provincial and municipal governments have all shown themselves to be too terrified by the prospect of confrontation, and the public backlash it has often produced, to respond to native challenges with anything but abject surrender. All it takes is a small roadblock, a moderate-sized protest march or a few tents by a roadside to send elected politicians scurrying for cover.

Even as police were preparing to clear a blockade under a B.C. Supreme Court injunction, the province’s natural resources minister, Doug Donaldson, turned up with his wife to hand over a box of goodies and offer his support to the hereditary chiefs defying the court. Prime Minister Justin Trudeau, who was forced to relocate a meeting with one set of chiefs when a protest group invaded the venue, pleaded for a cooling of temperatures, but Trudeau is as culpable as anyone — and more so than many — in striving to settle intractable differences with promises that can’t be kept and are bound only to increase the sense of aggrievement and accusations of bad faith.

It was Trudeau who, on the day the Truth and Reconciliation Commission issued its 2015 report, immediately pledged to implement all 94-plus recommendations, without bothering to calculate the cost or practicality, or to consider the impact on First Nations’ sentiments when he inevitably proved unable to fulfil his vow. Having shown himself to be just another big-talking politician, he now finds himself lacking the authority or influence to deal with situations like the one in B.C. He says he won’t visit the site and pleads for understanding. As with so many previous examples of Liberal happy talk proving ineffectual in solving real-world conflicts, he seems wholly unprepared for the fact many people can’t be won over by boyish charm and an arsenal of cheery bromides.

There is a healthy dose of schadenfreude to be had from the trouble in B.C. The province’s New Democratic Party government has blatantly obstructed the Trans Mountain oil pipeline that is of such vital concern to Alberta and the larger Canadian energy industry, meeting every plea with weasel words and left-wing posturing. Now it finds itself similarly stymied in a project it considers as crucial to B.C. as Trans Mountain is to Alberta. The gas pipeline is part of a $40-billion liquefied natural gas project unveiled with great fanfare by Trudeau with great fanfare by Trudeau and Premier John Horgan in October. Trudeau hailed it as “a vote of confidence in a country that recognizes the need to develop our energy in a way that takes the environment into account, and that works in meaningful partnership with Indigenous people.”

Then, with the plan suddenly under threat, the best he could offer the CBC was: “There are a number of people and communities who are supportive, there are a number of folks who disagree.”

With projects in Alberta and B.C. both in danger, perhaps — just perhaps — “progressives” like Trudeau and Horgan will begin to understand the need to come to terms with Canada’s Aboriginal communities in a way that moves beyond apologies and high-toned rhetoric, gets past pandering and posturing, and treats Canada’s need to develop its resources for the benefit of all Canadians with equal weight as the guilt it feels over injustices perpetrated by past generations.


----------



## Colin Parkinson (12 Jan 2019)

I have worked with the Haisla, one of the "switched on bands" 

https://www.youtube.com/watch?v=tZjwON05pXo

Chief Ross has now become a politician

 https://www.youtube.com/watch?v=jogR08Qw__4


----------



## Rifleman62 (13 Jan 2019)

https://theprovince.com/news/local-news/wetsuweten-dispute-over-pipeline-deal-illustrates-complexities-of-indigenous-law/wcm/65c241fc-d150-4e79-a1a2-a8ce97f86555

*Wet'suwet'en dispute over pipeline deal illustrates complexities of Indigenous law* - The Province - 11 Jan 19
    _The Wet'suwet'en elected council made an agreement with Coastal GasLink over its proposed pipeline, but hereditary chiefs argue 
       it doesn't have authority off reserve._

Wet’suwet’en First Nation hereditary chiefs have reached a deal with the RCMP to open a blockade preventing Coastal GasLink pipeline employees to do survey work in their territory, but they haven’t dropped their outright opposition to the project. And their dispute over whether the elected Wet’suwet’en band council had the authority to sign an impact and benefits agreement on behalf of all the First Nations people remains an open question that highlights the complexity of Indigenous law.

Coastal GasLink’s efforts to secure agreements with all 20 elected Indigenous governments along its entire 670-kilometre right of way were heralded by Premier John Horgan as an example of getting it right when it comes to First Nations consultation. The pipeline’s path starts near Dawson Creek in B.C.’s northeast and runs to tidewater at Kitimat, terminus for the $40-billion LNG Canada development it is intended to serve.

The Wet’suwet’en opposition, however, illustrates how in many cases in British Columbia, the relations between First Nations band councils, which are creations of the federal Indian Act, and the pre-existing and historic hereditary systems of governance are still being sorted out, said an Indigenous legal scholar, Val Napoleon. The difference, Napoleon said, is that hereditary systems are the larger, historic legal, social and economic orders that First Nations lived by that covered the entire territory of specific groups. Elected band councils have authority delegated by the federal government over activities on specific reserves.

Historically, most Indigenous people were “non-states,” Napoleon said, meaning that their authority was distributed among family, house or clan-based groups that are determined matrilineally. Hereditary chiefs come from specific families, but don’t directly inherit positions, Napoleon said. They earn their positions, and authority, through their ability to uphold the integrity of their land and their rules for social order.

In the case of the Wet’suwet’en, its hereditary system consists of 12 houses that are organized in five different clans governing different parts of the total historic Wet’suwet’en territory. “What we have here is a dispute over the extent of authority of a band council to make decisions beyond reserve boundaries,” Napoleon said. “And people are arguing that (the elected councillors) don’t have that authority under Wet’suwet’en law.” “That’s the other important issue here,” Napoleon said. “Indigenous law hasn’t gone away, but it has been undermined and there are gaps in what we’ve been doing and others are doing to rebuild it.”

Napoleon noted that it was Gitxsan and Wet’suwet’en hereditary chiefs who brought the landmark Delgamuukw case forward to the Supreme Court of Canada, which resulted in a decision that established that First Nations still have Aboriginal title to their historic territories. That principle and the roles of hereditary governance were further upheld in the Supreme Court of Canada’s 2014 Tsilhqot’in decision.
“Part of the problem here is that Wet’suwet’en law is still invisible to many,” Napoleon said. “So they can’t figure out what the proper relationship is between these laws and Canadian law and they can’t figure out what’s a legitimate process to deal with these disputes.”

In theory, “there is a very credible argument” that the Wet’suwet’en hereditary system is still the “customary government” with authority over matters in their larger, off-reserve territory, said B.C. lawyer Jack Woodward, who specializes in Indigenous law. Woodward said he isn’t familiar with the Wet-suwet’en situation, so he was speaking in abstract terms. The Tsilhqot’in decision established that First Nations reserves are small entities within larger Aboriginal territories, Woodward said, and that the reserves’ band councils, designated under the Indian Act, have jurisdiction over activities on reserve. However, “it is unclear who has jurisdiction over areas of Aboriginal title or unproven Aboriginal title,” Woodward said.

Matters are complicated further, Napoleon said, by the fact that elected band chiefs and councillors also belong to family houses and have their places in the hereditary system, often as hereditary chiefs. So depending on the First Nation, it isn’t always as clearcut as either being part of the hereditary system or the elected council. “You also have to be specific about the types of agreements (companies) have and the extent to which those agreements authorize band councils to act on behalf of people on lands that aren’t reserve lands,” Napoleon said.

Woodward has advice to the proponents of resource projects about how to approach Indigenous communities around consultation. “To be safe, if you’re a company, you would try to get an undertaking with (both elected and hereditary systems),” Woodward said. “You would need a bit of anthropological or ethnographic intelligence on the ground to figure out who the hereditary chiefs are, and make sure you’ve got them all on board.”


----------



## Edward Campbell (13 Jan 2019)

Am I the only one who finds something vaguely familiar in the legal system the Professor Napoleon describes? Does it not seem to anyone else that it is grounded in Lewis Carol?







Some will be guessing that when this gets to _the Supremes_ they will agree with Professor Napoleon that law is whatever is most convenient for First Nations ... and that business decisions will be made accordingly.


----------



## YZT580 (13 Jan 2019)

Trying to placate the locals is like playing whack-a-mole.  Solve one and another pops up.  It is time for one law for all Canadians including the tribes otherwise you will never achieve anything.  I have been involved in consensus building for 10 years and I can guarantee it doesn't work.  There is always one...  Yesterday there was a report that another group has taken the feds. to court over Salmon farming.  They are trying to get it shut down in the Queen Charlotte's.   They have laid claim to the land on either side of the strait and now they are claiming jurisdiction over the waterways as well.  Here is the catch!  There are only a few hundred all told.  So a few hundred can put a thriving Canadian business out of business simply because they don't like their methods.  There is something wrong with this picture.  It is time to end the farce that native Canadians have made of our business practices, our laws and find a politician that is willing to say that enough is enough.  I agree that they have been treated abominably in the past for reasons that probably made sense to the folks at that time but that doesn't mean that we have to continue paying for the sins of our ancestors.


----------



## Kat Stevens (13 Jan 2019)

So, the BC gov sticks it's nose into pipeline business and finds itself being obstructed by people along the proposed pipe route?  Irony, far out.


----------



## Journeyman (14 Jan 2019)

E.R. Campbell said:
			
		

> Am I the only one who finds something vaguely familiar in the legal system the Professor Napoleon describes?



Damn, I was hoping that "Professor Napoleon" was a blog offering lessons from the Napoleonic wars;  I even pictured a signature block of 'Never trust those _#&*&@_  Prussians!'    ;D

/tangent


----------



## Colin Parkinson (14 Jan 2019)

One thing I have seen is a difficulty for some FN's to distinguish between their roles as a local government and that of being a business entity. The more able FN have developed separate groups that look after the 2 sides and aren't always on the same page. I have had a FN group ask me to block a logging related application, because they didn't get the contract. Thankfully I see less of that sort of stuff now.


----------



## Kirkhill (31 Jan 2019)

Surf's up today.  

Paddling out - Who's in charge?



> Indian Act to blame for pipeline gridlock in northern B.C.: federal minister
> Carolyn Bennett
> 
> Amy Smart, The Canadian Press
> ...



https://www.ctvnews.ca/canada/indian-act-to-blame-for-pipeline-gridlock-in-northern-b-c-federal-minister-1.4268629

I don't often agree with Dr. Bennett but she's not wrong here.

So, who is in charge?  What is BC's role in all of this?  Surfing onwards to David Huer, 2015






The bits in red are actually BC.  The other bits are not.

https://davehuer.com/blog/a-new-map-of-the-coast/

Arguably THIS is BC.






Which Huer suggests could be its own Megacity Province as it has little in common with the rest of the Province.  It is a seaport (Edit - sister city to Hong Kong, Singapore and Calcutta).

As to the other bits.

The bit in the NE corner was actually incorporated into Canada by the 1899 Treaty 8 between Her Majesty's Government in Ottawa, under London supervision, and "Cree, Beaver, Chipewyan and other Indians, inhabiting the district hereinafter defined and described, and the same has been agreed upon and concluded by the respective bands at the dates mentioned hereunder, the said Indians DO HEREBY SHARE*, RELEASE, SURRENDER AND YIELD UP to the Government of the Dominion of Canada, for Her Majesty the Queen and Her successors for ever, all their rights, titles and privileges whatsoever, to the lands included within the following limits,"






So the NE quadrant was only hived off from the federal lands of the Northwest Territories and gifted to the administration of BC post confederation (1871), circa 1905-1911.  Arguably the quadrant would be better served as part of Alberta, or the Yukon current Northwest Territories.  It would certainly work to maintaining the integrity of the original Treaty 8 lands. (Settler geography or Treaty geography suggests another surfing expedition but not today).

It all makes for an interesting discussion with the prospect of a separate central sovereign parliament available for resolution of both internal and external disputes, a parliament with whom Ottawa, other provinces and companies could deal with surety.

But then I remember the Mother of Parliaments and Brexit....

On the other hand, there have been longer, more rancorous debates that have eventually found resolution - with minimal bloodshed.


----------



## Kirkhill (31 Jan 2019)

Just for reference

Would we have been better off adapting settlers to native boundaries or with the current system of adapting natives to settler boundaries?


----------



## Fishbone Jones (31 Jan 2019)

Can the government not just expropriate what we need or use the notwithstanding clause? No group should be able to stop Canadian progress, good for the whole country, by saying "Nope, my land. Stay out".

The government also needs to stop infiltration, funding and protests from US paid counter interests, like the Rockefellers, Tides Foundation and others, who are actively thwarting Canadian businesses through corporate espionage and funding the protests.


----------



## Kirkhill (31 Jan 2019)

Fishbone Jones said:
			
		

> Can the government not just expropriate what we need or use the notwithstanding clause? No group should be able to stop Canadian progress, good for the whole country, by saying "Nope, my land. Stay out".
> 
> The government also needs to stop infiltration, funding and protests from US paid counter interests, like the Rockefellers, Tides Foundation and others, who are actively thwarting Canadian businesses through corporate espionage and funding the protests.



My understanding is that Her Majesty's Government in Canada can expropriate lands, with due compensation in Treaty lands.  But that is the problem.  Most of BC is not covered by any Treaty, federal or provincial (and neither, it seems, is Quebec).


----------



## Kat Stevens (31 Jan 2019)

If treaty, or non-treaty, lands are expropriated for BCs LNG pipeline, I would fully expect the same to happen for Trans Mountain and Energy East.  If we're going to fuck off aboriginal peoples, we better get cracking on fucking off Gallic ones too.


----------



## AbdullahD (31 Jan 2019)

Chris Pook said:
			
		

> My understanding is that Her Majesty's Government in Canada can expropriate lands, with due compensation in Treaty lands.  But that is the problem.  Most of BC is not covered by any Treaty, federal or provincial (and neither, it seems, is Quebec).



This is what so many people miss.

I currently live just outside of smithers and it is amazing the sheer amount of ignorance regarding indigenous issues. But, sadly, it is political suicide to try and address it, so it is being left to fester away. Now having said that, corruption and greed is an issue from what I have been told in the bands up here, so take with salt. Yet, that does not negate the fact we have a hard pill to swallow for native people and non-natives alike and the sooner we take the medicine the better off we will be.. yet no one wants to it seems.

Abdullah


----------



## Fishbone Jones (31 Jan 2019)

AbdullahD said:
			
		

> This is what so many people miss.
> 
> I currently live just outside of smithers and it is amazing the sheer amount of ignorance regarding indigenous issues. But, sadly, it is political suicide to try and address it, so it is being left to fester away. Now having said that, corruption and greed is an issue from what I have been told in the bands up here, so take with salt. Yet, that does not negate the fact we have a hard pill to swallow for native people and non-natives alike and the sooner we take the medicine the better off we will be.. yet no one wants to it seems.
> 
> Abdullah


I don't profess to know 100%. I haven't checked, but I've read many bands along the line are prosperous and good corporate partners.

I've also read, many of the bands in opposition are making millions from the groups I mentioned above.

In my mind, it might be time to revisit these treaties and land issues. Perhaps end the Reserve system also. It doesn't work, period.

Work land trades and payouts. No reserves, no status. We are all Canadians. If you want to live on welfare, do it like everyone else. No more millionaire chiefs. The biggest obstacle is emotion. Get rid of that, people will talk.


----------



## AbdullahD (31 Jan 2019)

Fishbone Jones said:
			
		

> Work land trades and payouts. No reserves, no status. We are all Canadians. If you want to live on welfare, do it like everyone else. No more millionaire chiefs. The biggest obstacle is emotion. Get rid of that, people will talk.



Preaching to the choir mate, but removing emotion seems damn near impossible.


----------



## Colin Parkinson (31 Jan 2019)

AbdullahD said:
			
		

> This is what so many people miss.
> 
> I currently live just outside of smithers and it is amazing the sheer amount of ignorance regarding indigenous issues. But, sadly, it is political suicide to try and address it, so it is being left to fester away. Now having said that, corruption and greed is an issue from what I have been told in the bands up here, so take with salt. Yet, that does not negate the fact we have a hard pill to swallow for native people and non-natives alike and the sooner we take the medicine the better off we will be.. yet no one wants to it seems.
> 
> Abdullah



Nice area, a big part of this is that there is a pissing match within the bands as to who gets to lead, these bands are often very small and lot of personal strife. But once bands take on the role of government, they quickly realize that running government is not fun without money. Hence the Nisga approving the PRGTS to cut through the memorial lava beds.


----------



## Kirkhill (31 Jan 2019)

Interesting passage from Treaty 8 (which governs the NE Quadrant of BC - including the Site C Dam - and Northern Alberta)



> And Her Majesty the Queen HEREBY AGREES with *the said Indians that they shall
> have right to pursue their usual vocations of hunting, trapping and fishing throughout the tract
> surrendered* as heretofore described, subject to such regulations as may from time to time be
> made by the Government of the country, acting under the authority of Her Majesty, and saving
> ...



http://treaty8.bc.ca/wp-content/uploads/2015/07/Treaty-No-8-Easy-Read-Version.pdf

My take on that is that in 1899, the date of signing, the natives had the opportunity to band together on reserves or to individually accept land grants of 160 acres exactly as the settlers were receiving.

It doesn't sound like anybody was forcing anybody to do anything.  They could settle separately or band together under a government of their own choosing (Chiefs and Headmen) on lands selected with their input.


----------



## Rifleman62 (1 Feb 2019)

http://www.mondaq.com/article.asp?articleid=775944&email_access=on

Article by Craig O Alcock and Paul A. Beke - Burnet, Duckworth & Palmer LLP
*
Alberta Appeal Judge Finds That Unfounded Fears, However Genuine, Do Not Qualify As Harm To Aboriginal Rights* - 29 Jan 19

On January 16, 2019, Alberta Court of Appeal Justice Ritu Khullar issued a decision in Fort McKay Métis Community Association v Alberta Energy Regulator.

The Alberta Energy Regulator (AER) had approved Prosper Petroleum Ltd.'s oil sands project after hearing evidence from the Fort McKay Métis Community Association. The Fort McKay Métis requested permission from the Court to appeal the decision, which could only be granted if the AER had made an error of law or jurisdiction. The Court denied leave to appeal as, among other things, unjustified fears of contaminated fishing grounds were insufficient to show actual harm to aboriginal rights.

The decision illustrates that no actual harm to aboriginal rights arises from unfounded contamination fears or other subjective perceptions.
*
Summary of the Alberta Energy Regulator's Decision*

Prosper applied to the AER for various approvals for an oil sands project that would operate within 10 km of the Fort McKay First Nation's Moose Lake Reserves. The Fort McKay Métis claimed unextinguished, constitutionally protected Métis aboriginal rights to hunt, trap, and fish on their traditional territory on or near the reserves. In its hearing, the AER considered the Fort McKay Métis to be a rights-bearing community, and weighed the oral traditional knowledge that the Fort McKay Métis presented as evidence.

*The Fort McKay Métis' genuine fear of eating the fish was unjustified*

The AER accepted evidence from the Fort McKay Métis that some members would be genuinely afraid to eat fish from Moose Lake due to fear of contamination. The AER (1) determined that the project would neither harm the fishery, nor reduce the animals available for hunting and trapping, but (2) recognized a risk of a "negative social effect", in that, members might change how they value the lands and the animal resources. When weighing the public interest, the AER accounted for these fears and perceptions, but ultimately decided that the Fort McKay Métis would continue to be able to exercise their aboriginal rights in their traditional territory.

*The AER concluded that the project was in the public interest*

The AER granted conditional approvals under the Oil Sand Conservation Act, the Environmental Protection and Enhancement Act, and the Water Act, which were dependent on approval by Cabinet. Other conditions required that Prosper seek input (1) from the Fort McKay Métis on reclamation, and (2) from the Fort McKay Métis and the Fort McKay First Nation before further developing the surface-water-monitoring program.

*Summary of the Court of Appeal's Decision*

The Fort McKay Métis presented a number of grounds for leave to appeal. On one, the Court decided that AER's overall weighing of the public interest was not a matter of pure law (as opposed to mixed fact and law). Thus, no appeal was available on that ground.

On another ground, the Court determined that the Fort McKay Métis had no basis to argue that they shouldn't bear the burden of proving harm to their rights.

*Fear of harm is not actual harm*

The most fundamental ground of appeal claimed by the Fort McKay Métis was that the project would harm their Métis aboriginal rights under section 35 of the Constitution Act, 1982.

They argued that:

 - the project would cause them to perceive their traditional lands differently;
 - which would, in turn, cause them to avoid Moose Lake and reduce their fishing; and
 - reduced use of their fishery would objectively harm their fishing rights.

The Court reasoned that unlike any objectively proven harms to wildlife and water, merely subjective fears or perceptions do not qualify as actual impacts on Métis aboriginal rights. Unfounded fear does not negatively impact aboriginal rights.

*The Right Holder Must Prove Actual Harm to its Rights*

In hearings over aboriginal rights, the common law has had to grow to include evidence such as oral traditional knowledge. But when proving harm to aboriginal rights, the approach is standard. The relevant issue is whether a development project will actually harm aboriginal rights—not whether purely subjective fears and perceptions will hamper the exercise of aboriginal rights.

The full decision can be found here: https://www.canlii.org/en/ab/abca/doc/2019/2019abca15/2019abca15.pdf


----------



## Colin Parkinson (1 Feb 2019)

We try to accommodate for perception and concerns within the environment assessment process. I have also placed regulatory conditions onto proponent to require them to post notices, conduct public meetings and provide ongoing updates to alleviate some of those perceptions.


----------



## Cloud Cover (5 Feb 2019)

Chris Pook said:
			
		

> Interesting passage from Treaty 8 (which governs the NE Quadrant of BC - including the Site C Dam - and Northern Alberta)
> 
> http://treaty8.bc.ca/wp-content/uploads/2015/07/Treaty-No-8-Easy-Read-Version.pdf
> 
> ...



Without the preservation of the entire animal migration lands and without provision of sufficient alternate subsistence to first nations by the Indian Agents, they had no chance at all to survive under those treaties. I don't have much sympathy for the situation they have themselves in today, for many billions have been flaunted and floundered, but back in those days the intent of goodwill from the Crown was a cruel ruse.


----------



## Rifleman62 (15 Feb 2019)

Common sense or not? I can imagine how long it would take to consult and get a firm decision, all the while pipeline integrity is at potential risk.

http://www.mondaq.com/article.asp?articleid=779954&email_access=on

*Case to Watch: Does the Duty to Consult Apply to Maintenance of Existing Pipelines?* - Willms & Shier Environmental Lawyers LLP - 11 Feb 19

In Aroland First Nation v Transcanada Pipelines Limited, the Ontario Superior Court of Justice declined to decide on a motion whether the duty to consult applies to routine maintenance activities, specifically integrity digs and hydrostatic testing, for pipelines approved before the courts articulated the duty to consult. The issue was brought before the Court on a motion for partial summary judgement. The Court held that the issue could not be "fairly and justly decided" on such a motion. Instead, the issue will be dealt with in the main action. This action raises interesting legal issues with practical significance for proponents and Indigenous communities. The ultimate decision will fill in details about how and when to apply the duty to consult.

*Background*

TransCanada operates four natural gas pipelines (located largely underground) within the traditional territories of Aroland First Nation ("AFN") and Ginoogaming First Nation ("GFN"). AFN and GFN exercise Treaty and Aboriginal rights within their traditional territories.
Under the National Energy Board Act, the National Energy Board ("NEB") has jurisdiction to approve construction of interprovincial pipelines by issuing Certificates of Public Convenience and Necessity ("Certificates"). Certificates continue in perpetuity.

The pipelines at issue in this case were approved prior to judicial recognition of the duty to consult. Consequently, AFN and GFN were not consulted prior to the issuance of the Certificates for the pipelines. Certificates authorize the certificate holder to do all "acts necessary for the construction, maintenance, and operation of its line."

As part of its routine maintenance operations, TransCanada conducts regular testing procedures on pre-approved pipelines, including:

 - integrity digs, which involve excavating 8 to 18 meters in length along a pipeline and take approximately 23 days to complete, and
 - hydrostatic testing, which involves drawing large amounts of water from local water bodies into a pipeline and takes approximately 55 days to complete. Hydrostatic testing involves some ground disturbance.

There have been approximately 247 integrity digs and 47 hydrostatic tests within the AFN and GFN's traditional territory since the pipelines were constructed. The court observed that "[o]bviously, these tests are very invasive as they require extensive disruption of land" but equally *"pipeline safety is an important concern that motivates these tests."*

In 2017, AFN and GFN issued an action challenging TransCanada's ability to conduct integrity digs around its pipelines without consulting AFN and GFN, and sought various forms of declaratory relief and damages. AFN and GFN subsequently brought a motion for partial summary judgment seeking one of the declarations requested in its statement of claim – a declaration that the duty to consult applies to pipeline maintenance testing conducted within their traditional territories.
*
Crown Conduct*

The Crown owes a duty to consult when the Crow

 - has knowledge, actual or constructive, of a potential Aboriginal claim or right, and
 - contemplates conduct that could adversely affect that claim or right.

TransCanada argued that the Crown conduct at issue in this case was the issuance of the Certificates, which occurred from the 1950s to 1998. Pipeline maintenance is "all part of the same disturbance" that was caused by the historical approval of the pipelines. Courts have held that the duty to consult applies only to immediate or prospective Crown conduct, not historical Crown conduct. Therefore, the duty would not apply to pipeline maintenance in this case.

In contrast, AFN and GFN submitted that Crown conduct was permitting, by acquiescence, certain routine pipeline maintenance activities that are "highly invasive" and cause "extensive disturbance." Each invasive test constitutes a new disturbance to the land and a new adverse impact on known and asserted Aboriginal and Treaty rights. AFN and GFN argue that the Crown should consult prior to certain pipeline maintenance activities conducted on historically approved pipelines, particularly where the duty to consult did not exist at the time of pipeline approval.
*
Test on Motion for Partial Summary Judgement*

In order to grant summary judgement, the Court must be satisfied that there "is no genuine issue requiring a trial with respect to a claim or defence." There is no genuine issue requiring a trial when the summary judgement judge "is able to reach a fair and just determination on the merits." To reach a fair and just determination, the summary judgement process must (i) allow the judge to make necessary findings of fact and apply the law to the facts, and (ii) be a proportionate, more expeditious and less expensive means to achieve a just result. On a motion for partial summary judgement, the Court must also consider the issue to be determined in the context of the litigation and "the risk of duplicative or inconsistent findings."

The Court in this case concluded that whether the duty to consult applies "is too thin a slice of the duty to consult analysis to do justice to the position of either side within the partial summary judgement process."

Splitting the analysis in this manner might "result in a failure of justice" because:

 - in Haida Nation, the Supreme Court mandated a cautious, incremental and fact 1 specific approach to the duty to consult, which is inconsistent with a bifurcated analysis.
 - to determine whether consultation applies on the motion for partial summary 2 judgement would require the parties to present evidence that would overlap with evidence to be presented at trial (on the scope and adequacy of consultation). This approach is both 
 -  inefficient and gives rise to "a significant risk of conflicting findings of fact."
the parties dispute facts supporting the adverse impact analysis, which "tends to 3 inform other components of the [duty to consult] test."


----------



## Kirkhill (15 Feb 2019)

That one is interesting because it concerns a property management dispute between two parties that both accept the Crown's authority.  It is no different than a dispute over access to the right of way in front of a suburban house and who should replace the lawn the owner planted when the city put in new gas lines.

The BC case is the more interesting one because, due to the lack of treaties, the BC natives, in my opinion, have reason to argue that they are not in a relationship with the Crown, or Canada, or BC.

Suspecting that there might be some push back from Victoria is it possible for a Federal government to conclude a Nunavut style settlement with the BC natives?

That would, of necessity mean splitting metropolitan BC from the rest of the province but it would put the land firmly in control of the native community.  I am sure that this would find broad support among all environmentally friendly metropolitans, knowing that all forests, mines and pipelines would be managed in a sustainable manner by the ancient stewards of the land.


----------



## Lumber (15 Feb 2019)

Chris Pook said:
			
		

> Suspecting that there might be some push back from Victoria is it possible for a Federal government to conclude a Nunavut style settlement with the BC natives?



1. Could you elaborate, briefly, on what a "Nunavut style settlement" means; and
2. Could you explain what the red highlighted areas in the pictures mean? Areas that would fall (remain?) under crown control?


----------



## Kirkhill (15 Feb 2019)

The red areas are Treaty areas: areas ceded to the Crown.  The big red area in the North East is part of the Treaty 8 area and extends across Northern Alberta into Saskachewan and over 60 into the Northwest Territories.

The map at the bottom is that portion of Vancouver Island and the Lower Mainland covered by treaties.

Everything in white, in my understanding, is land that has been claimed by Canada but never ceded by the natives. It is arguable, in my opinion that it is a foreign land.

Nunavut was in a similar situation with Canada claiming territory occupied by an aboriginal (or at least pre-existing) population.  Because of the harsh climate in the north the locals weren't as bothered by outsiders pushing to make a dollar in their backyard so they had a bit more peace in their isolation than southern natives who found themselves surrounded by oil, uranium, gold, trees and wheat and at least 3 months out of the year where the sledding was hard and wheels were an advantage.

But as the prospects of northern development increased (diamonds, gas, oil and iron) so it became necessary for the government of Canada and the locals to organize some sort of accommodation which would permit the feds to generate revenues from the northern lands and allow the locals to have a say in the exploitation while making a buck themselves.

I believe that a similar rationale applies in BC - despite the fact that the problem has festered and morphed since the 1890s.  

The difference between Nunavut and BC is the difference between cutting your toe-nails and having an in-grown toe-nail trimmed: one is minor and painless, the other.....


----------



## Brad Sallows (15 Feb 2019)

>It is arguable, in my opinion that it is a foreign land.

It's not foreign unless Canada is unwilling to escalate use of force as far as necessary to exercise sovereignty over it.

Modern health and preventive health care alone is worth more than all the land in the Americas.  (No amount of land can extend short average lifespans.)  Earlier immigrants to the Americas have gotten an extremely good deal compared to where they would be right now if they were still making their own way up the human tech tree.


----------



## Kirkhill (15 Feb 2019)

Brad Sallows said:
			
		

> >It is arguable, in my opinion that it is a foreign land.
> 
> It's not foreign unless Canada is unwilling to escalate use of force as far as necessary to exercise sovereignty over it.
> 
> Modern health and preventive health care alone is worth more than all the land in the Americas.  (No amount of land can extend short average lifespans.)  Earlier immigrants to the Americas have gotten an extremely good deal compared to where they would be right now if they were still making their own way up the human tech tree.



I accept that there is a good bargain to be had, regardless of resorting to force.  The Treaty Natives accepted that bargain.   To date the BC Natives haven't.

Perhaps a better appreciation would be had if they had their sovereignty and were free to draw their own conclusions.  Freedom or security is an ongoing debate - as the Brits are finding out.

It is one thing to be able to blame someone else for your inadequate health care.  It is another thing to be responsible for your own health care and have no one else to blame.  It is still yet another thing to believe that you have been forced into your current situation against your will with no exit options.

There were slaves who worried about emancipation because at least on the plantation they had a roof, food and running water.  And there are prisoners who commit crimes so they can return to the comfort of prison.

It seems like not a bad idea to give the locals what they wish for.  And let T'simshian and Lax Kwa'alams decide who controls the border with the Haida.


----------



## Brad Sallows (15 Feb 2019)

>Perhaps a better appreciation would be had if they had their sovereignty and were free to draw their own conclusions.

Agreed.  But I don't believe in have-the-cake-and-eat-it-too solutions, or solutions which don't eventually lead to exactly one class/category/tier of citizenship for all Canadians.  And what degree of freedom and protection (from abusive "self-government") is granted to the individuals who don't want to be quaint living museum exhibits?


----------



## Fishbone Jones (15 Feb 2019)

As long as words like sovereignty, self determination, treaty rights, etc are being used, there won't be any equality on either side. Its going to take some tough love and a lot of cash but we need to get rid of natives vs everyone else. We're simply setting things up for failure every time. If not failure, at least millions in cost overruns and timelines that no corporation or project should have to shoulder, while waiting on negotiations.

Everyone in this country is entitled to exactly the same thing. No reserves, same chance at education and medical and everything else.

This system of two seperate classes has cost us billions and increased lost opportunity because of bickering and one upmanship.

Aboriginals need to be brought into society as active and equal participants. No special treatment, perks or takeaways.

One only need look at the problems its causing in the petroleum sector. The lost time, money and opportunity is enough to prove this system is not sustainable, profitable or equitable.

Or reserves with no clean water or housing, but millionaire chiefs in their million dollar homes.

You can be damned sure that if the government wanted my land for a pipeline, they'd have possession in 90 days. Jail or no jail.

When it entails projects that support the whole of Canada, for the good of Canada, nobody or group should be given leave to tie it up, delay it or stop its progress.

 :2c:


----------



## Rifleman62 (16 Feb 2019)

*When it entails projects that support the whole of Canada, for the good of Canada, nobody or group should be given leave to tie it up, delay it or stop its progress.*

Who stopped Energy East?


----------



## Oldgateboatdriver (16 Feb 2019)

Actually, Rifleman62, it was the very company that professed it wanted to build it who then stopped.

Many Quebec politicians (and numerous Ontario ones) indicated they didn't want the pipeline built, but it was not in their power to stop it, one way or the other.

What stopped it is that the National Energy Board sent the company back to do its classes after finding that the company failed to provide the required supporting documentation to its application to permit a complete evaluation of the project. The company then decided to pull its application and not to provide the required documentation. Did it have something to hide?

However, even though politicians in Quebec and Ontario claimed victory and declared themselves happy, they had nothing to do with the stoppage.


----------



## Lumber (16 Feb 2019)

Fishbone Jones said:
			
		

> When it entails projects that support the whole of Canada, for the good of Canada, nobody or group should be given leave to tie it up, delay it or stop its progress.



The crux of the problem, from what I can tell (so correct me if I'm wrong), with this statement is that many of these First Nations who live on traditional territory that is "unceded" don't actually consider their nations and terriroty part of Canada. I think... When you try and google "is unceded native land Canadian territory" or something similar to that, you don't get much.


----------



## Rifleman62 (16 Feb 2019)

Then you answered the question.


----------



## Fishbone Jones (16 Feb 2019)

Lumber said:
			
		

> The crux of the problem, from what I can tell (so correct me if I'm wrong), with this statement is that many of these First Nations who live on traditional territory that is "unceded" don't actually consider their nations and terriroty part of Canada. I think... When you try and google "is unceded native land Canadian territory" or something similar to that, you don't get much.



That is exactly what I'm talking about. How do you create a sovereign country (the unceded land) inside a sovereign country? We need to put a stop to this system. It's stupid and divisive. Nobody should get to stand in the way of progress, when it's for the good of the country. How do you let the Grand Duchy of Fenwick override the wishes of millions of citizens inside their host country? If they don't consider themselves part of Canada, why do they keep taking our money?

Yes politicians think they stopped Energy East. I think all they got was a reprieve til after the election. It'll be back. I think investors, in all sectors, know Canada is a great deal. They just have to out wait the trudeau party obstructionists.


----------



## Brad Sallows (16 Feb 2019)

I suspect those who deem their land "unceded" and want to exercise "sovereignty" don't really mean they want to bear the costs and responsibilities of being truly sovereign.  Their position is somewhat like that of Quebec sovereigntists - keep all the advantages of being part of Canada, with fewer obligations than other levels of government in Canada and greater abilities to collect and distribute rents for themselves.


----------



## Colin Parkinson (17 Feb 2019)

Case in point, the message coming back is that Treaties are not the way to go. A modern treaty is detailed and lays out FN governance clearly and puts the long term funding of that into their hands to raise and spend. The Nisga had to allow something they might not otherwise had done so in order to get funding from a proponent to run the programs they promised to their people.


----------



## Kirkhill (17 Feb 2019)

Another problem, I believe, is the divergent views held about the Hudson's Bay Company and Rupert's Land.

The Hudson's Bay Company worked hard, up until the time that it sold it to Canada, to ensure that no settlers were allowed on its territory. The Company had no desire to upset the locals and disrupt the supply of furs.  They established trading posts from Astoria to Stikine, by Fort Chip and Fort Garry to York Factory but actively discouraged settlers.

The one time they permitted settlers (Red River 1811) they proved themselves right when the Seven Oaks Massacre, the Pemmican War and the subsequent Metis Rebellions occurred.  They ended up having to hire a bunch of Swiss mercenaries cashiered out of British service at the end of the Napoleonic wars to protect the settlers.

The interior of BC wasn't "settled" until after the Gold Rushes.

Effectively the HBC claim on the lands as a private commercial estate protected the locals from the settlers.  The Government bought out the HBC commercial claim in 1869 so as to permit settlment.  

It was only after Confederation that land claims became a significant issue.  Before then borders were less important than the limited number of HBC Big Box stores scattered around the continent.  Interestingly, even after HBC surrendered their interest in Rupert's Land for Canadian cash it maintained its trade and network of stores.

I guess the big question is why the Treaty system worked so well with the "Flyover Country" natives and so poorly in the Mountains.


----------



## Rifleman62 (17 Feb 2019)

Speaking of "Flyover Country", the new Minister of Indigenous Services adding to global warming.

http://www.smalldeadanimals.com/


----------



## Fishbone Jones (17 Feb 2019)

I think I just threw up in my mouth a little bit.


----------



## Lumber (17 Feb 2019)

I don't get it. Why's this a big deal? Everything in that picture sounds reasonable?


----------



## Colin Parkinson (17 Feb 2019)

Chris Pook said:
			
		

> Another problem, I believe, is the divergent views held about the Hudson's Bay Company and Rupert's Land.
> 
> The Hudson's Bay Company worked hard, up until the time that it sold it to Canada, to ensure that no settlers were allowed on its territory. The Company had no desire to upset the locals and disrupt the supply of furs.  They established trading posts from Astoria to Stikine, by Fort Chip and Fort Garry to York Factory but actively discouraged settlers.
> 
> ...



Mainly as the Cree controlled access to trade goods for a big part of it and suppressed the other tribes. It was the NWC that upset the comfortable setup that the HBC had and brought in trade booze, that forced HBC to do the same.


----------



## SeaKingTacco (17 Feb 2019)

Lumber said:
			
		

> I don't get it. Why's this a big deal? Everything in that picture sounds reasonable?



There are a few parts missing from the original post on SDA.

There was a screen capture of the airline schedule to Laronge, SK showing multiple commercial flights, daily.

The implication is that Seamus is unwisely showing an "imperial" demeanor as he attempts "reconciliation" from the comfort of a government business jet.


----------



## daftandbarmy (18 Feb 2019)

Lumber said:
			
		

> The crux of the problem, from what I can tell (so correct me if I'm wrong), with this statement is that many of these First Nations who live on traditional territory that is "unceded" don't actually consider their nations and terriroty part of Canada. I think... When you try and google "is unceded native land Canadian territory" or something similar to that, you don't get much.



That's because a judge is sometimes the one who decides on that.


----------

