Enbridge's Northern Gateway pipeline still not a certainty, says lawyer

The notion of aboriginal rights to hunt, trap, and fish may strike some as quaint.

As eminent Native-law practitioner Jack Woodward observes, they sound simple. But he also points out that these same rights could trump modern industrial projects such as the proposed Northern Gateway oil pipeline.

“That’s the surprising conclusion of Canadian law: that what sounds like a minor right, even an old-fashioned right, is sufficient,” Woodward told the Georgia Straight by phone on June 17.

The Victoria-based lawyer was interviewed just before the federal government announced the same day that it had approved Northern Gateway. Immediately, several aboriginal groups declared that they will go to court to stop the $7.9-billion, 1,177-kilometre-long twin-pipeline project.

Woodward noted that although Prime Minister Stephen Harper and his government have the power under federal legislation to approve the pipeline, that power is not absolute.

“What is not within his [Harper’s] power is the Constitution,” the lawyer said. “The Constitution is over his head, and under the Constitution, one category of rights are aboriginal rights.”

Woodward explained that the right to hunt is “not just the right to go out into an empty field”. It embodies a “meaningful right to hunt, which means there has to be a harvestable surplus of animals.

“And to have a harvestable surplus of animals…you have to have enough healthy habitat to support that population of animals,” Woodward continued. “It can’t be fragmented; it can’t be chopped up by things like…highways, railroads, and pipelines.”

This also applies to trapping animals. “If you disrupt their territory, you no longer have a meaningful right to trap,” he said. “So they really are environmental rights at their heart.”

Woodward knows this field well. He represented Tsilhqot’in Nation in a landmark case in which a B.C. Supreme Court upheld its right to hunt and trap. The decision was affirmed in 2012 by the B.C. Court of Appeal.

Woodward also represented a tribal association that intervened in a case decided by the Supreme Court of Canada in 2005. The court ruled that the federal government must consult the Mikisew Cree First Nation in Alberta before taking lands for a winter road.

“People would say, ‘Well, there are already linear corridors; there’s already a highway; there’s already a railroad.’ But it’s the cumulative impact of these that can pose an environmental challenge, and, therefore, there can be a constitutional challenge based on it,” Woodward said about the Mikisew case.

He also said that the idea of a “meaningful right” applies also to fishing: “If there was a tanker spill off the B.C. coast, it would be catastrophic for many First Nations.”

In 1990, the Supreme Court of Canada recognized the aboriginal right to fish for food, social, and ceremonial purposes in the case involving Ronald Sparrow of the Musqueam First Nation.

“So there are dozens, if not hundreds, of different potential challenges to the pipeline,” Woodward said.

The legal challenges began in January this year. One of these was by the Haisla Nation, whose territory covers the coastal town of Kitimat, the western end of Northern Gateway’s pipelines and the place where tankers will load diluted Alberta bitumen. The Haisla sought a judicial review of the joint federal panel’s report recommending cabinet approval of the Enbridge Inc. project.

Vancouver lawyer Jennifer Griffith is representing the Haisla before the federal Court of Appeal. She agreed that the historic case that involved hereditary chief Earl Muldoe, known as Delgamuukw, and other hereditary chiefs of the Gitxsan and Wet’suwet’en First Nations in B.C., is important.

In 1997, the Supreme Court of Canada affirmed that aboriginal title exists as a right to the land itself. The court ruled that the government must consult, and may have to compensate, First Nations whose rights are infringed upon.

“The Delgamuukw decision is relevant to the extent that it lends some content to what aboriginal title is and how it needs to be respected under the laws of Canada,” Griffith told the Straight by phone. “The project requires taking of land from our client’s territory, land to which our client claims aboriginal title.”

According to Griffith, “there should have been a meaningful consultation process with our client about that potential taking of land, and that has not occurred”.