A challenge by the Huron-Wendat First Nation in Quebec City may be about to force two multi-million dollar projects in southern Ontario back to the drawing board.
“We never extinguished our rights in Ontario,” said Huron-Wendat Grand Chief Konrad Sioui in an interview with VICE. “If you step on our site, our land, there's a price to pay for that.”
The Huron-Wendat, whose reserve is in Wendake, Quebec, just outside of Quebec City, have signalled their intention to file court injunctions against both Enbridge's $690 million gas pipeline expansion in the Greater Toronto Area, and the Ontario government's multi-billion dollar expansion of Highway 407 East, from Pickering to Clarington, including two north-south routes connecting the 407 to the 401.
At issue is whether the Huron-Wendat were properly consulted under their constitutional rights and under the principle of free, prior and informed consent as outlined in the United Nations Declaration on the Rights of Indigenous Peoples, of which Canada is a signatory. That means that Enbridge, the Ontario Energy Board (which organized the review of the Enbridge gas expansion), and the Ministry of Transport of Ontario were all required to engage in meaningful consultations with the Huron-Wendat Nation.
For some it may seem bizarre that a First Nation based in Quebec would need to be consulted over infrastructure projects in Ontario, but a quick history lesson clears that up:
For thousands of years, the Huron-Wendat originally populated the northern shores of the Great Lakes Region, and used the St-Lawrence as their “grand boulevard” for hunting, fishing, and travel. As Grand Chief Sioui explained, it was only through disease brought by Europeans that the Huron Nation was dispersed from that land, and ended up settling further north, near Quebec City in 1651. They never ceded the rights to the land where they lived in Ontario, said the Grand Chief.
Their historical presence in southern Ontario isn't in dispute, and archeological findings of the last decade put ancestral Huron-Wendat sites right along the routes of the Highway 407 and Enbridge’s pipeline expansion. The largest is what is known as the Mantle Site, uncovered in 2002, and which has been likened to the New York City of the Huron-Wendat Nation. Located in Stouffville, ON, just north of the 407, it was a central trading hub, was about 4.2 hectares large, about the size of Manhattan, and inhabited by some 2,000 people. Other archaeological sites have been found in the areas around it, including throughout Toronto and other parts of the GTA.
“Both Enbridge and the Ministry of Transportation of Ontario have discovered ancestral aboriginal sites that they now have to move,” said the lawyer representing the Huron-Wendat, Suzanne Leclaire, in an interview. “But they have not consulted with the First Nation, which is a constitutional duty that most project proponents, either mining or infrastructure, [should abide by]: You must consult if you know you're on aboriginal traditional land, which is the case here.”
There are some 400 recognized Huron-Wendat archaeological sites found throughout southern Ontario.
The Ministry of Transport of Ontario has said that they consulted with the Huron-Wendat, starting in 2008. In an email to VICE, a representative wrote that they have been regularly providing updates to the Huron-Wendat Nation about the development of the Highway 407 East expansion and its archaeological impacts. This was done, they said, through both letters and face-to-face meetings, adding: “The Huron-Wendat Nation has participated in ceremonies on site and MTO has provided it with copies of the Environmental Assessment document and archaeological reports.”
The email also states that they follow the guidelines laid out in the Ontario government's Engaging Aboriginal Communities in Archaeology.
While that's a start, said Leclaire, she counters that it's not enough. Beyond archaeological information, she said, the MTO is required to provide all environmental and economic information, and then engage in full consultations with the Huron-Wendat before any decision on the project is taken. “So far, the MTO has refused to provide any information on the economics of the project nor any opportunities to provide input on the routing of the highway. Moreover, MTO refuses to negotiate an Impact Benefit Agreement, as constitutionally required,” said Leclaire.
Enbridge did not reply to a request for their response to these concerns. And the Ontario Energy Board only responded that they have not yet received a notice of appeal on the Enbridge decision.
No lawsuits or appeals have been filed, said Leclaire, but they will come, especially if work begins on either of the two projects without further consultation with the Huron-Wendat. That seems unlikely for the next phase of Highway 407 East, since it's still in the pre-construction phase and only slated to start in 2015 (phase one of the extension is already in construction, and should be completed by late 2015). But the Enbridge gas pipeline expansion is planned to begin by late 2014
What exactly is at stake if these two projects are put on hold? Enbridge has said that its expansion is necessary in order to keep up with household natural gas demands in Toronto, predicting a possible shortage for the GTA as early as the winter of 2015-2016, with some possible 270,000 customers affected. Ontario Liberals and local mayors have touted the Highway 407 extension as relieving massive gridlock in the GTA, creating business opportunities, and according to a recent study, reducing commuting times by 26 minutes per day.
The Huron-Wendat are not putting a price tag on their negotiations with either Enbridge or the Ontario government, and Grand Chief Sioui said that they are not against development. But he is adamant that governments and developers need to respect the duty to consult when they build on unceded land. It's an issue that isn't new, but is still contentious, and has been playing out across Canada: From Enbridge's other pipelines—the Northern Gateway in northern BC and the Line 9 reversal in Quebec and Ontario—to the northern Ontario so-called “Ring of Fire” mining development, to natural gas exploration in Elsipogtog, New Brunswick, and many more. Much of what we know as Canada has never been ceded to the Canadian or provincial governments. As major infrastructure projects increase in number and size, and questions of their economic, environmental and cultural impacts grow, so to has the stead-fastness of Indigenous peoples to ensure consultation and that their rights over their territory are preserved.
It's become such a major issue for any infrastructure project, that Leclaire says she's shocked that neither Enbridge or the MTO would have thought of the consequences of not initiating a comprehensive consultation process. “Most mining developers in northern Ontario are well familiar with the duty to consult procedures but somehow, project developers appear to forget the duty to consult process also applies in southern Ontario,” she said in a release detailing the Huron-Wendat Nation's concerns.
It's an oversight that shows just how far Canadian governments and corporations still need to go to reconcile their vision of economic and resource development with the country's ongoing legacy of colonialism. According to Sioui, the time of head nodding and empty promises are over.
“They need to leave that [colonial] era. We don't just want a little plaque, don't just want a hand on the back, saying 'Alright, thanks Konrad.' No, no, no, that's not enough,” said Grand Chief Sioui.