By Andrea Palframan
Last June, I spent three days in a Vancouver courtroom watching the Hupacasath First Nation argue their case against the federal government. The Hupacasath came robed, just like the judges and the lawyers. They weren’t wigged-out like the Department of Justice benchmen. They wore cedar woven headbands and hummingbird embroidered regalia (and underneath, comfortable blue jeans).
The Hupacasath were challenging Canada over the Canada-China Foreign Investment Promotion and Protection Agreement (CC-FIPPA) on the basis that the treaty, with its implications on their sovereignty, should have triggered the duty to consult them under Section 35 of the constitution. Under CC-FIPPA, Canada would be locked into a 31-year deal that would allow Chinese corporations unprecedented access to Canadian resources. The agreement allows Chinese companies to sue Canada for passing laws -- environmental, labour, health or safety -- which impede their profit-making ability.
As in Chapter 11 of NAFTA, such lawsuits would be settled by international tribunals of unelected, usually corporate, lawyers.
The Hupacasath are not only safeguarding their own future, they’re standing up to the naked emperors in Ottawa who feel free to toss the keys to Canada over to trans-national corporate interests.
Save the Fraser Declaration
And the Hupacasath not alone. All over Canada, from Elsipogtog to Kitimat, First Nations are resisting ill-conceived fossil fuel and mining development projects on their territories. Perhaps the only positive outcome of Harper’s hard steer to the right is the resulting alliances that are being built among First Nations.
In BC, a group of 20 nations along the proposed Northern Gateway pipeline route, known as the Yinka Dene Alliance, have passed indigenous laws banning tar-sands products from moving through their territory.
The Save the Fraser Declaration has been signed by 130 First Nations, engaging "just about every single band … from the Alberta border to the Arctic, to our U.S. neighbours and out to the west coast," according to spokesperson Geraldine Thomas-Flurer.
In November 2013, the Yinka Dene launched a Solidarity Accord to the Fraser Declaration, inviting non-indigenous people to sign on to "do whatever it takes" to stand in the way of Enbridge. Unifor, Canada’s most powerful private sector union, signed on, along with municipalities, tourism associations and opposition MLAs.
Gerald Amos former chief counselor and treaty negotiator for the Haisla Nation, in reviewing Arno Kopecky’s new book, The Oil Man and the Sea, explains: "despite the political discord we see in the news, the things that First Nations and non-indigenous Canadians have in common outweigh the forces holding them apart. We all need clean air, clean water and happiness. Those who push for development at all costs only bring the rest of us closer together."
First Nations, last bastions
The Royal Proclamation of 1763, that was written 250 years ago, established that Aboriginal Peoples were independent nations subject to their own laws. It's an enlightened document that respects the sovereignty of Canada’s first peoples: Thomas King argues, in his book, The Inconvenient Indian, that Canadian policymakers have been trying to make up for it ever since.
The last historical treaty was signed in 1923. In 1927, it became a criminal offense for First Nations to assemble politically or to hire a lawyer to pursue land claims. That law wasn’t repealed until 1951.
By then, as now, the majority of the province’s First Nations had not ceded title to their territories.
Canada entered a whole new era with the Constitution Act of 1982, whose Section 35 recognized inherent aboriginal and treaty rights. First Nations seized this as a tool to move forward to realize rights that had been repressed under the Indian Act.
After close to 40 million dollars in costs and nine years in the courts, the Supreme Court of Canada's 1997 Delgamuukw decision established that First Nations in B.C. had never surrendered title to their traditional territories, reaffirming the existence of aboriginal title. Delgamuukw found that the Crown has a duty to consult with First Nations on development projects in the unceded territories, comprising most of the land base in B.C.
Even the neo liberal Fraser Institute acknowledges, in the publication Laying the Groundwork for BC LNG Exports to Asia, that "in the case of First Nations without treaties … the extent of their property rights are essentially undefined. If a First Nation has a treaty agreement with the government, then prospective investors know precisely who to negotiate with and on what basis. However, a non-treaty First Nation that successfully asserts 'title' to land in court … has a degree of control over how the land is developed."
"In the last 30 years of Canadian environmentalism, there has not been a major environmental victory won without First Nations at the helm," says Clayton Thomas-Muller of the Indigenous Environment Network. The Haida decision, in 2004, is a good example: while the short-term goal -- stopping Weyerhauser's logging operations -- was realized, the case ultimately accomplished far more: Haida established the government's legal obligation to consult with First Nations -- even when dealing with First Nations who hadn't proven land ownership through treaties or in the courts.
The Haida case set a precedent that has allowed subsequent First Nations plaintiffs to leverage ancestral title in opposing forestry and mining projects. It is also the basis upon which many First Nations are poised to launch legal challenges to tar sands and LNG infrastructure such as the Northern Gateway pipeline and Pacific LNG export terminals.
"The Federal government are washing out environmental laws, so that all that remains is in the hands of … First Nations who have constitutional powers, making theirs one of the strongest sources of environmental protection in Canada if not the world," says Drew Mildon, lawyer for the Beaver Lake Cree First Nation.
Thomas King’s The Inconvenient Indian is suddenly the most consequential presence in the house.
A lawyer for every dollar
All of this came to a head in December when the Joint Review Panel on the Northern Gateway approved the Northern Gateway Pipeline. "There are some very serious questions about whether the Crown will have discharged its duty to consult First Nations," says Jessica Clogg of West Coast Environmental Law. According to Clogg, the constitutionality of Enbridge’s pipeline comes into question regardless of whether or not the Harper Government declares it to be in the national interest.
The next steps in tar sands and LNG opposition are likely to hinge upon First Nations rights-based legal frameworks, with support and funding from citizens, unions and NGOs. Yet the immense cost to carry out litigation remains prohibitive for most First Nations. "We are out-resourced; for every dollar we have they probably have a lawyer," quips the Yinka Dene’s Thomas-Flurer.
First Nations who don’t have rock stars touring on their behalf can access the Environmental Dispute Resolution Fund of West Coast Environmental Law, an innovative legal aid fund with access to a network of 100 lawyers.
Another group, R.A.V.E.N. Trust (Respecting Aboriginal Values and Environmental Needs) also administer legal defense funds for First Nations who are defending their lands or livelihoods. Neil Young is slated to play a series of "Honour the Treaties" concerts over the next weeks, with funds raised going to the Athabasca Chippewan First Nations legal defense fund.
Like Young, "We're trying to level the playing field," says R.A.V.E.N. director Susan Smitten. "[Governments] are forcing First Nations to sue them to uphold promises that government should be keeping in the first place."
The Hupacasath example may be one case where an ounce of prevention is worth a pound of cure. The initial court challenge, and the resulting court appeal, were funded in part through Lead Now, an online community who mobilized donations from 8,000 ordinary citizens.
Had the Hupacasath not brought their lawsuit, the CC-FIPPA might have been immediately ratified. The consequence could have triggered millions of dollars in lawsuits by Chinese investors were the federal government to have said "no" to the Enbridge pipeline.
Perhaps, at the end of the day, all that the Hupacasath will accomplish in court will be to buy time, until legislators take up the concerns of the hundreds of thousands of citizens who have raised their voices against CC-FIPPA.
Think cumulatively, act locally
After their struggle to establish legitimacy in the lower courts, the Supreme Court has agreed to consider the cumulative impacts of industry on the Beaver Lake Cree as a violation of treaty rights. Facing 19,000 oil and gas projects in their territory, the band argue that their rights to hunt and fish in perpetuity are under threat from all sides. Lawyer Jack Woodward has stated that a Beaver Lake Cree win "would be the most powerful ecological precedent ever set in a Canadian court."
Because they bear the burden of proof, the Beaver Lake Cree are engaged in mapping and land use planning that sets up frameworks for protecting resources and cultural values over the long-term. "All of that information will become public," says Smitten. "Even if they lose, their case has assembled this body of knowledge on the cumulative impacts of the tar sands: on species, on livelihoods, on traditional use of lands."
The cumulative approach is being applied not just by the Beaver Lake Cree in their constitutional challenge, but by aboriginal alliances that stand together to preserve biodiversity and uphold indigenous law.
"We're not just looking at our small piece of the pipeline," says Yinka Dene’s Thomas-Flurer. "We are living in a time when people are actually working together, standing together. This unity never happened in my grandmothers lifetime. I'm glad it's happening now."
When is a pen mightier than a pipeline?
The solidarity that has come about as a backlash to Harper’s polarizing petro-politics means there are plenty of citizens, indigenous and otherwise, ready to "Warrior Up."
Since its launch on the December 5, the Solidarity Accord to the Save the Fraser Declaration has mobilized thousands of citizens who have made the commitment to do "whatever it takes" to stand in the way of Enbridge’s pipeline project.
"West Coast Environmental Law signed on," said Clogg. "What it means to me is that when First Nations call, I'll be there. For some people, it means writing a letter, for some it may mean attending a corporate AGM or a rally, and for others … it may come to a point where First Nations call on signatories to stand with them to defend their territory."
The commitments engendered by the Solidarity Accord invite non-aboriginal people to reframe their relationships with First Nations.
"I look at it as unity: you see people coming together for the greater good," says Thomas-Flurer. "We have our non-First Nation brothers and sisters that live around our communities, who are talking to us, supporting what we’re trying to do. It’s something I'm going to cherish all my life."
The Yinka Dene Alliance, the Beaver Lake Cree, the Hupacasath and many others with cases before the Canadian judiciary, stand as a formidable barrier against the Harper government’s fossil fuel expansion agenda.
Let us stand with them.
Sign the Fraser Declaration’s Solidarity Accord.
Andrea Palframan is a journalist who lives on SaltSpring Island, BC