A funny thing happened on the way to the pipeline hearings. On Jan. 9, 2012, the eve of the Joint Review Panel hearings in British Columbia to review Enbridge's proposal to build a twinned "Northern Gateway" pipeline from the oil sands of Alberta to the Pacific Ocean, then-natural resources minister Joe Oliver published an open letter in newspapers across the country. His endorsement of the project was clear, but he cautioned that "there are environmental and other radical groups that would seek to block this opportunity" and that, with foreign funding, "these groups threaten to hijack our regulatory system to achieve their radical ideological agenda."
Many, including us, sighed at another over-the-top political blunder by a politician who had been in the news for melodramatic statements before. But that open letter had a number of important effects, some of which are only becoming visible now.
The first effect was to put many people on the defensive, which was surely part of his intent. At the JRP hearings, ordinary citizens often opened their comments with statements clarifying that they did not belong to any organization and that they were not "radicals."
Another effect, however, was to frame the pro and con sides of the debate as one over the environment. In some instances, this was depicted as the opposition of environmental and economic interests, frustrating any attempt to have a conversation about their mutual dependency. More importantly, it suggested the opposition to the Northern Gateway pipeline was from environmentalists, period.
This obscured the opposition of aboriginal peoples, which many observers, including a couple of Globe and Mail journalists, had already figured out was "one of the biggest risks to Enbridge in its efforts to move Northern Gateway forward." First Nations' political mobilization against the project was already well underway and it was serious. According to the Fraser Declaration that was drafted by an alliance of B.C. First Nations in the fall of 2010: "This project...and the federal process to approve it, violate our laws, traditions, values and our inherent rights as Indigenous Peoples under international law."
Silencing the opposition to the Northern Gateway project from First Nations who claim title to the land it proposed to cross is, frankly, a very bad idea. Why? Because British Columbia is in the unusual position of not holding clear legal title to the territory it claims. The Canadian government negotiated treaties with First Nations covering most of the rest of Canada (though the meaning and application of several remain strongly disputed). But in British Columbia, with few exceptions, claims to territory by the Crown are not based upon transfer of title through agreement with First Nations, but on the assertion that the territories in question were unoccupied wilderness prior to the arrival of European settlers.
In 1973, in Calder v. British Columbia (Attorney General), the Supreme Court of Canada declared that aboriginal title pre-existed its articulation in the Royal Proclamation of 1763. A task force recommended the treaty process recommence in B.C.; twenty years after Calder, the B.C. Treaty Commission began its work. The Nisga'a Treaty that was signed in 1998 was the first modern treaty to be enacted in B.C. and the culmination of 113 years of effort on the part of the Nisga'a Nation (the plaintiffs in the Calder case). Since then, a further handful of treaties have been signed, several other nations are in negotiations, but most refuse to participate in the treaty process.
First Nations, business and industry (particularly natural resource industries, an enormous chunk of the B.C. economy), and the B.C. provincial government under the previous premier Gordon Campbell all agreed that resolving the question of aboriginal title was urgent. While several court decisions have recognized both the idea of aboriginal title and some specific claims, they have also established that recognizing or extinguishing aboriginal title is solely the responsibility of the federal government. The Harper government has shown little-to-no interest in taking up that responsibility, preferring to deal with things on a "case by case" basis.
All parties, except the federal government, have explicitly recognized that for reasons of law, economics, and social justice, the question of aboriginal title in B.C. must be comprehensively addressed and resolved. Deferring or ignoring it is the equivalent of putting our heads in the sand. The courts do not support such an approach, and First Nations in B.C. are well-informed and well-organized. This question is not going away, nor should it. Putting it off only increases the tension and conflict, and reduces the chance of a peaceful solution.
Patricia Burke Wood is professor of Geography at York University. David A. Rossiter is associate professor of Geography and Environmental Studies at Western Washington University.