Native Conflicts vs the Economy

[Cloud Cover]

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

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.

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]

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]

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]

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]

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]

>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]

>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]

>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]

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]

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]

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]

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]

Then you answered the question.

 

[Fishbone Jones]

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]

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]

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]

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]

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

http://www.smalldeadanimals.com/

 

[Fishbone Jones]

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

 

[Lumber]

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