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Northern Gateway's Indictment: native legal win #231

Nobody took the eight First Nations seriously in their consolidated lawsuit against Canada, the NEB, the Review Panel and the proponent Northern Gateway. The conventional logic being: What wasn't covered off in the 209 conditions attaching to the Government's project approval? Then on  top of that came the B.C. government's five conditions - denoting regulatory overkill. Thus what could this native legal challenge possibly find to criticize, so as to overturn the federal cabinet's approval?

The answer, as it turned out, is that the court found much to criticize. The first inkling of trouble came when the court took the unusual step of issuing this disclaimer right at the beginning - no facts in dispute - no new law applied - meaning all the court had to do was weigh the evidence before it and apply the legal precedents:

(9) In reaching this conclusion, we rely to a large extent on facts not in dispute, including Canada's own factual assessments and its own officials' words. Further, in reaching this conclusion, we have not extended any existing legal principles or fashioned new ones. Our conclusion follows from the application of legal principles previously settled by the Supreme Court of Canada to the undisputed facts of this case.

This in itself is an unusual introductory comment. I maintain that the court sensed (correctly) that mainstream media has dropped the ball on reporting the rise of native empowerment and in particular the impressive native legal winning streak. So by introducing the ruling in this manner, the court is saying to Canadians that there's a serious body of law here to be readily applied to uncontested facts

That makes their determination beyond reproach in the media.

On the political-side of the equation, only one Globe & Mail commentator stands apart for having the backbone to call out the Harper Government on its mishandling of the duty to consult. "What an indictment" said Gary Mason "The degree to which the Conservatives ignored that onus, or attempted to have the project proponent Enbridge fulfill it on their behalf, is appalling." (July 01) 

Here's the court's most damning indictment on the consultation process:

(264) During the consultation meetings, Aboriginal groups were repeatedly told that Canada's representatives were: 
    - working on the assumption that the Governor in Council needed to make the decision by June 17, 2014;
    - tasked with information gathering, so that their goal was to get the best information to the decision-makers;
    - not authorized to make decisions; 
    - required to complete the Crown Consultation Report by April 16, 2014.

(265) When the role of Canada's representatives is seen in this light, it is of no surprise that a number of concerns raised by Aboriginal groups - in our view, concerns very central to their legitimate interests - were left unconsidered and undiscussed. This fell well short of the conduct necessary to meet the duty to consult. There are several examples. 

(287) Following the authorities of the Supreme Court of Canada on the duty to consult, we conclude that during the Phase IV process, the parties were entitled to much more in the nature of information, consideration and explanation from Canada regarding the specific and legitimate concerns they put to Canada.

The pipeline was already in trouble when this ruling issued and was in the process of applying to the NEB for a 3-year permit extension in order to buy-time for meeting its start-up conditions. Now the NEB preempted that possibility just 8 days after the court's ruling:

'The National Energy Board (NEB) is suspending its review of a request from Northern Gateway Pipelines and the Aboriginal Equity Partners to extend the sunset clauses for the Enbridge Northern Gateway Project. The NEB will also suspend its review of any filings from Northern Gateway regarding compliance with the 209 conditions attached to the project.'

This is native legal win #231 on Canada's road to resources. It?s not every day that a major pipeline project that was personally championed by the (former) Prime Minister is shot-down.

Tellingly there is now a considerable list of Harper Government initiatives that have likewise been shot down by native legal wins: its strategy in tatters on courtroom floors across Canada:
1. both Omnibus Acts - regulatory streamlining (FN win #201)
2. First Nations Financial Transparency Act (FN win #220)
3. environmental assessment 'Equivalency Agreement' (FN win #225)
4. United Nations Declaration formal objection removal (FN win #230)
5. Northern Gateway duty to consult (FN win #231)

This is why I refer to the Harper era as a 'decade of systemic stagnation' on the native file. The bottom line for Canada is to now recognize that First Nations are 'on a roll' on the road to resources; they've redrawn the map on Canada one ruling at a time making them 'Resource Rulers' in deciding the fate of projects everywhere. It's high time we started taking their legal empowerment seriously.

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