Canada’s High Court Hands First Nations Keys to the Tar Sands

One hundred and fifty years ago, five leaders of the indigenous Tsilhqot’in Nation in British Columbia were lured into peace talks with the British Crown, and then promptly arrested and hanged.

That brought to an end the Chilcotin War of 1864, which had broken out in response to a flood of gold-rush settlers in the Canadian west.  Like most other native nations in British Columbia, the Tsilhqot’in (or Chilcotin) did not surrender their land under a treaty, but were slowly marginalized under the pressure of settlement and development. Their lands were exploited for gold, minerals and timber, and they were recognized as having title to only a small fraction of their historical range.

But two weeks ago, much of that changed overnight. In a 25-year-old legal case, Canada’s Supreme Court ruled unanimously on June 26th in favor of the Chilcotin Nation’s claim to some 675 square miles of land that had previously been contested. The court found that aboriginal title does not just apply to land where First Nations live, but to the lands they have historically used for hunting, trapping and fishing.

Grand Chief Derek Nepinak leading Healing Walk in the tar sands

Grand Chief Derek Nepinak leading Healing Walk in the tar sands

The day after the decision was handed down, I arrived in northern Alberta for a gathering of First Nations leaders and their friends, in the heart of tar sands mining country. And despite the flood of terrible news facing native people from the tar sands pollution, the mood that day was happy – even jubilant.

That’s because the Chilcotin decision for the first time provides a clear basis to establish First Nations’ title to un-surrendered lands, and strengthens the hand of indigenous people in dealing with companies seeking to exploit mining, logging and fossil fuel development on those lands.

“This decision . . . will be a game-changer in terms of the landscape in B.C. and throughout the rest of the country where there is unextinguished aboriginal title,” said First Nations Regional Chief of British Columbia Jody Wilson-Raybould.

Others would go even further, claiming that it gives indigenous people “a veto” over resource development proposals on their now-expanded lands. And while that’s probably an overstatement, the court’s ruling certainly increases the amount of Canadian land over which the First Nations will now exercise significant control. Now, timber companies, miners, and pipeline operators will have to solicit consent from indigenous peoples before pushing ahead.

Ah, pipeline operators. Now there’s a timely topic.

Canada, of course, sits on the second-largest reserves of oil and gas in the world, trailing only Saudi Arabia. But those reserves are mostly locked up in the highly-polluting Alberta tar sands, resting beneath pristine northern boreal forests, expensive to produce, and landlocked far from refineries and tidewater ports. But as global oil prices have risen in recent decades, Canada has begun working feverishly to find export routes for their tar sands oil. For fifty years now, they’ve been mining the tar sands, and shipping them through pipelines to the US Midwest. But after all this time, they’ve managed to dig up only about 5% of those reserves.

Prime Minister Stephen Harper has declared his intent to make Canada “an energy superpower” and that means faster development of the tar sands.  And faster development means more pipeline capacity. Much more. To begin with, Canada asked its American neighbors to let them build an enormous pipeline – the Keystone XL – all the way to the Gulf of Mexico, where plenty of refineries and ports are available for exporting the oil. But the Americans have proven to be a skeptical bunch, and some even worry about contaminated aquifers and climate-warming pollution – mainly for the benefit of huge oil companies. At last check, the Keystone XL was mired in its seventh year of permit approvals, bogged down by state, federal and judicial hurdles.

But Canada has its eye on other pipeline routes as well. And the most promising of these have looked westward, to proposed tanker terminals on British Columbia’s Pacific coast. The best known is Enbridge’s Northern Gateway pipeline, proposed to snake for more than 700 miles from Alberta to Queen Charlotte Sound over mountainous terrain. The proposed project features twin 36-inch pipelines, one carrying liquid natural gas eastward to the tar sands region, where it can be mixed to dilute the tar-like bitumen, and then sent back to the coast to be loaded onto supertankers.

There is a problem, however, with the Northern Gateway. It’s fiercely resisted by indigenous First Nations directly in its path. Sixty-one First Nations signed declarations staunchly opposing the pipeline. Forty more have since joined them. And none has publicly supported it.

Enbridge’s Northern Gateway blocked by First Nations land. Courtesy, Yinka Dene Alliance

Here’s Chief Larry Nooski of an indigenous alliance opposing the pipeline: “We want no part of Enbridge’s project and their offers are worthless to us when compared to the importance of keeping our lands, rivers and the coast free of crude oil spills. What Enbridge is offering is the destruction of our lands to build their project, and the risk of oil spills for decades to come which could hurt everyone’s kids and grandkids.”

And whatever obstacles the Northern Gateway has encountered from the First Nations to date, the Supreme Court’s Chilcotin decision multiplies them exponentially. That’s because everywhere in Canada where land has not been ceded by treaty, oil pipelines must now obtain consent from those holding aboriginal title, and no one yet knows how much more land that means.

But according to Art Sterritt, the executive director of the Coastal First Nations, it’s a quantum leap. “It represents a massive shift in the relationship between First Nations and governments,” said Sterritt in a prepared statement.

And the new rules of the game don’t just apply to the Northern Gateway. Proposed pipelines run through unceded territory in both eastern and western Canadian provinces. I suspect every tar sands pipeline proposal will have to gain a greater level of approval from First Nations, whether to the east in Quebec or westward in British Columbia.

Interesting stuff, right? But what does it have to do with us down here below the 49th Parallel? Well. It turns out that it’s more important than you might think. Here’s why:

President Obama still has to make a decision about the Keystone XL pipeline, and its 830,000 barrels per day of tar sands crude flowing through the middle of our country. He’s gone on record saying that he won’t approve it if it contributes measurably to greenhouse gas pollution. Those words have given real comfort to many who are concerned about climate change.

At first glance, we might think this will be an easy decision. But the U.S. Department of State, which is responsible for making it, has prepared an environmental impact statement (EIS) that reaches a startling conclusion. Whether or not we allow Canada to ship nearly one million barrels more tar sands crude across our country every day, that crude will get out one way or another. We can’t stop it. We can’t even slow it. The only thing we could do is make it slightly more expensive to get out.

The basic narrative is like this: “You may hold your foxhole, soldier, but all the others around you will surely be overrun. You might as well retreat now.”

How does the State Department come to this? Well, for starters, they assume that all those other pipelines will almost certainly get built. And even if they don’t, Canada will flood all its railroads with oil trains and get to port one way or another. The very most we can do by refusing the Keystone XL is to cut tar sands production by a paltry 4 percent over 20 years.

Well, Canada’s Supreme Court has just splashed some cold water on the State Department’s expectation that those other pipelines will be built. And in both the U.S. and Canada, exploding oil trains are forcing people to ask serious questions about whether this is such a great idea. Indeed, the EIS isn’t just wrong in its projections for the future. Delays in the pipeline approvals everywhere have already constrained the growth of tar sands mining. Existing pipelines are full, and railroads still represent a tiny portion of the crude transport.

Tar sands growth stalled by contested pipelines

Tar sands growth stalled by contested pipelines. Courtesy, Etienne de Malglaive

According to Geoff Hill, who leads Deloitte’s oil & gas consulting practice in Calgary, failure to approve the pipelines could force “substantial slowdowns in the tar sands.” And one of the tar sands giants, Suncor Energy Inc., is already considering putting an $11.6 billion facility on hold due to problems with transport.

So to our eye, Canada’s Supreme Court hasn’t just raised the bar for tar sands operators looking to force their way through to the pristine Pacific coast. It’s also forcing the State Department to acknowledge that the Keystone XL will materially contribute to greenhouse gas pollution, as most observers knew by intuition from the outset.

Because now, if we hold our little foxhole, don’t be surprised if Canada’s First Nations also hold theirs. The oil giants are incredibly powerful, but those standing against them may have just found “help unlooked for.”

2 thoughts on “Canada’s High Court Hands First Nations Keys to the Tar Sands

  1. John Elwood Post author

    Eugene Kung, a lawyer with West Coast Environmental Law clarified some points, and helped us see how complex the legal front can be.

    On the Court’s decision: This IS the first time a Canadian Court has found Aboriginal Title outside of a reserve. But it isn’t the first case which sets out the standards for establishing Aboriginal Title.

    On unceded land: What the Court says is that once Title is established, a company must receive consent from the First Nation or be able to justify it with a very high test. However, where there are unceded lands (most of BC), title has not yet been established (i.e. it is in the process of land claims or negotiations or court case), so that higher standard of consent doesn’t directly apply. What the government must do, is act in a way that will not permanently alter land that could be subject to Aboriginal Title – especially where that claim is known. So that means that if the Crown knows about potentially impacting a future Title claim, they must consult, knowing that if Title is established, they need to work towards consent.

    So, a little more nuanced than in my summary, but good news, no less. Thank you Eugene!

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