Justin Trudeau Can Fully Back Pipelines or Aboriginal Rights, But Not Both

In recent months, we've seen a surge in public displays of affection for TransCanada's proposed Energy East pipeline. According to such fanboys/fangirls (a long list including Alberta Premier Rachel Notley, the entire Conservative caucus and Rick fucking Mercer), the 1.1 million barrel/day project would create jobs, generate sweet, sweet export dollars and lessen Canada's dependency on foreign energy sources. It's a "nation-building" project, we're told, one compared by TransCanada's CEO to the building of the Canadian Pacific Railway in the 19th century (a pretty tone-deaf comparison given the CPR was built with slave labour and helped trigger the North-West Rebellion).

None of those arguments matter in the slightest. That is, if Canadians want to pretend to care about recognizing the legitimate sovereignty of Indigenous peoples.

Prime Minister Justin Trudeau has pledged to implement all 94 recommendations contained within the Truth and Reconciliation Commission and the United Nations Declaration on the Rights of Indigenous People, both of which emphasize the implementation of "free, prior and informed consent" and rejection of the "terra nullius" principle (the bullshit theological argument used to justify settler-colonialism which allowed the federal government to claim "ownership" over Canada's lands). JT has specifically described Indigenous rights as "not an inconvenience but rather a sacred obligation."

But many First Nations and treaty organizations across the country ardently oppose pipelines. Court cases are piling up and Indigenous groups are winning lots of them. In December, Kanesatake – where the legendary Oka Crisis of 1990 happened – pulled out of the review process for Energy East along with another nearby Mohawk community. Many other First Nations and treaty organizations have called for delays or a full halting of the process.

So the fact that politicians and corporate execs continue overtly and implicitly advocating for the completion of Energy East and other pipelines like Kinder Morgan and the Northern Gateway in the midst of such overwhelming dissent serves as a slap in the face to Indigenous peoples, especially when the same people use language like "nation-to-nation" and "reconciliation" on the regular.

Clayton Thomas-Muller, the Stop It at the Source campaigner for 350.org and member of the Mathias Colomb Cree Nation, emphasizes it's not the fault of the 634 First Nations that the "settler-colonial state of Canada" chose to agree to "nation-to-nation" relationships with them (the latter referring to the concept of two nations coming to the table with equal rights and recognition of each other's sovereignty).

"That's something that Trudeau and the federal government of Canada, and of course the provincial governments who hold jurisdiction over natural resources, need to figure out," he told VICE. "And they need to provide Indigenous peoples with adequate resources to meaningfully engage their populations to make sure they're informed without any meddling of corporate or government entities to be able to effectively say 'yes' or 'no' to a project. I think there's a lot of coercion, a lot of economic blackmail and exploitation of the socioeconomic crisis by both the state of Canada and by the corporations they're working in collusion with."

It's technically the job of the Crown to consult with Indigenous peoples, but part of that duty has been delegated to the National Energy Board (NEB), a federal tribunal responsible for the regulation of interprovincial and international oil and gas pipelines. It's a controversial approach that the Supreme Court of Canada will continue to mud-wrestle with in future years. Individual First Nations may receive benefits such as revenue sharing, guaranteed jobs and the reclamation of damaged lands. A system exists. But it's horrendously flawed in the eyes of many.

There are good reasons. For one, the NEB has never rejected a project based on First Nations opposition. In recent years, the NEB has also been criticized for draconian rules on oral testimonies, a refusal to allow testimonies from traditional experts, cuts to participant funding (which helps First Nations pay for the pricey process, including hiring of experts and preparing of evidence and reports), abbreviated consultation windows and a failure to ensure companies are complying with conditions. Many lawsuits have been filed against the federal government and NEB by First Nations, mostly recently the joint application by Clyde River and Chippewa of the Thames approved by the Supreme Court. These are not exactly the indicators of a process that respects the rights and desires of sovereign nations.

"It's not the fault of the NEB," notes Eugene Kung, staff counsel for the West Coast Environmental Law's Aboriginal and Natural Resources Law team. "They're not set up to have those nation-to-nation conversations. They're made of engineers and accountants who are very good at a very specific job but I don't think that particular scope includes nation-to-nation reconciliation or some of the concerns that are much broader than an economic or technical analysis, especially when given unrealistic timelines."

To be sure, Trudeau has indicated the NEB process will be bolstered, with three interim board members to be appointed to meet specifically with Indigenous groups. He's also stated the federal government will consult directly with the over 150 First Nations communities impacted by Energy East after the NEB process has been completed via a single ministerial representative.

But such moves are exercises in contradictions. Trudeau recently stated that energy exports will "fund this transition to a low-carbon economy," implying support for pipelines given his commitment to address climate change. According to the Alberta regional chief of the Assembly of First Nations (AFN), the prime minister's sending "mixed signals" about the ability for First Nations to veto pipeline projects. A vice-president for a petroleum industry service provider stated after sitting in on a roundtable with Trudeau in early February that "from what he told us today, he's in favour of pipelines because it benefits all of Canada." Mixed signals indeed.

"There's definitely a lot of posturing by these governments to paint that they're moving in a different direction," says Eriel Deranger, communications manager and member of Athabasca Chipewyan First Nation (one of the communities hardest hit by tarsands development). "It's problematic because I'm not sure how they would actually achieve it unless they were willing to actually restructure the governance that has been in place for the last century-and-a-half."

It all comes back to treaties. Many have been made with Indigenous groups over the centuries, with the most famous cluster being the 11 Numbered Treaties signed between 1871 and 1921. Debates have raged ever since then about the "true spirit and original intent" of such agreements. Indigenous elders and scholars have often argued that treaties represented a commitment to mutual respect, the sharing of land and resources and not to meddle in each other's internal affairs.

But the Canadian state has essentially interpreted them as agreements of the surrender and extinguishment of land title, which is how Indigenous people ended up on reserves (well, that and John A. Macdonald's sociopathic forced starvation of such peoples in order to "clear the plains" for settlement). It's even more complicated in British Columbia, where most of the province is not subject to treaty.

But this shit gets tricky even within Indigenous circles given contested understandings of nationhood: Hayden King, director of Centre for Indigenous Governance at Ryerson University and member of Beausoleil First Nation, notes that "nation" can refer at any one time to a small community, clan, First Nation, treaty territory or an entire confederacy. Dealing with simultaneously fluid and powerful nations would be inconvenient for Canada (if sovereign, such entities would possess a formalized veto over a pipeline for whatever reason they please: they don't like the colour, it bisects a field that's really quite good for playing ultimate frisbee in, or maybe a spill from it would devastate traditional hunting, fishing and trapping terrain.)

Yet Canada has finally decided, at least in rhetoric, to "reconcile" with Indigenous peoples. King notes that so far, that's just looked like many "politically convenient" meetings between Trudeau and AFN Chief Perry Bellegarde, who Thomas-Muller nicknames "Pipeline Perry." Something's gotta give. Yet the recent First Ministers' Meeting, which rounded up all the premiers to chitchat about climate change and a green economy, excluded any Indigenous leaders from the actual meeting. Sunny ways but only if you're a politician representing settlers, it seems.

"Really, when we're talking about climate change or land and resources, it's provinces that have that jurisdiction and First Nations need to have conversations with the provinces," King says. "There's no better opportunity than at a First Ministers' meeting to have those conversations."

But that relationship's starting to change whether the provinces and country want it or not. Kung – who works with the Tsleil-Waututh Nation, which has filed a lawsuit against the NEB and federal government over alleged lack of consultation in the NEB's controversial Kinder Morgan review – says while it's not a legal requirement to obtain consent from First Nations, it's turning into a very practical need: "Across the board, the lack of that consent represents very real legal and financial risk."

In other words, veto power is already effectively in place given recent successes in the courts, although it would help all parties involved if there was more certainly about the rules of engagement. But such efforts cost First Nations in legal fees, money which could otherwise be used to house their communities, provide clean water and fund health services. Plus, there's the salt in the wound of having to sue the nation you signed a treaty with in order to be respected (but that's a whole different story).

Meanwhile, grassroots activism continues building. Judy DaSilva, a member of the Grassy Narrows First Nation (near Kenora, Ont.) and veteran activist, was served an injunction by CN in April 2015 for holding an Anishinaabe water ceremony next to the railway lines passing through her home nation owned by CN. She's also helped organize a blockade against forestry activity in Grassy Narrows since 2002 and has been an outspoken advocate about mercury contamination. Now, DaSilva's gearing up for another fight, this time against Energy East: on March 19, she's hosting another water ceremony adjacent to a pipeline that runs close to her grandfather's gravesite and residential school site where many children are buried.

It's a battle that Thomas-Muller has great confidence that Indigenous people will win: "We're still in a bit of the honeymoon period but it's becoming very, very clear that Prime Minister Trudeau and the establishment, along with the centrist Indigenous chiefs' organizations, are continuing to try to push business as usual," he concludes.

"I think the difference between before and now is that there's a powerful, bonafide climate justice movement in this country led by First Nations people that is standing in the way of their pipeline dreams."

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