Despite opposition to the Enbridge's Line 9 pipeline from municipalities and First Nations, plans to get oil flowing east to Quebec through the 40-year old line are on the verge of becoming a reality, pending final-final approval by the National Energy Board.
However, a court case brought forward by the Chippewa of the Thames First Nation (COTTFN), an Anishanabek community near London, Ontario, could have an impact when it begins June 16 in Toronto.
The Line 9B pipeline west terminal is located in Westover, Ontario and its east terminal is in Montreal, closely following Highway 401 for most of that distance. Since 2012, Enbridge has tried to get approval to reverse the flow of Line 9B to pump up to 300,000 barrels per day of western oil, including heavy tar sands bitumen and lighter Bakken crudes. The NEB gave Enbridge the nod in February, and the Calgary-based company indicated it expected to have the line operational this spring. A Toronto Media Coop article stated oil could have started flowing "as early as June 1." But the NEB has yet to give its really-final approval.
We asked the NEB what effect of the Chippewa's court case was having on their Line 9B approval process. The NEB told us, "No other court has granted a stay of the Order, so there is no reason why the [National Energy] Board would delay its assessment of the leave to open application for Line 9B."
In plainer language, the NEB is not waiting for the legal challenge to be resolved.
But the NEB also mentioned, "There is no time limit for the NEB's review; we will take the time needed to make the right decision." The NEB won't say when it will give Enbridge the go-ahead, but it is saying the Chippewa's case isn't holding them back. Communities along the line, including COTTFN, are concerned oil could start flowing soon.
Lana Goldberg of Rising Tide Toronto, an organization closely watching and opposing Line 9 developments for years, says, "We're expecting it to start up any day now."
On May 21, COTTFN tried appealing directly to the NEB for a "stay of Board Order," legalese for getting the NEB to pause the project, until issues of consultation were addressed. That application was rejected by the NEB on June 3 following a response from Enbridge calling COTTFN's application "frivolous, vexatious, and an abuse of process."
VICE spoke with Myeengun Henry, a COTTFN band councillor.
"Canada has never consulted us on this project and it's their constitutional obligation to do so. They can't appoint a third party. It should be a nation-to-nation discussion," he said.
The "third party" Henry is referring to is the National Energy Board, which operates at arms-length from the federal government. Cabinet appoints the NEB's members, the majority of whom have worked in the energy industry and are white.
Henry asserts the NEB's consultations with COTTFN on Line 9B amount to "a failure of Canada to live up Section 35 of the Constitution." Section 35 describes Canada's responsibilities to consult with First Nations.
But Henry stresses the importance of looking beyond Section 35 to the treaties it was meant to respect and honour.
"The Two Row Wampum is a very important treaty in this region," says Henry from his Conestoga College office. "I also carry the Treaty of Niagara belt and 24 Nations belt and let people know what it means." These treaties were made between First Nations of the Great Lakes—St Lawrence region (and other lands) and the British to successfully ratify the Royal Proclamation of 1763, a document foundational to the Canadian state.
"They're about shared relationships and shared resources between indigenous and settler peoples," says Henry of the treaties.
But in court it will be Section 35 taking centre stage, not the treaties. Section 35 will feature in a similar case being heard in Vancouver this fall concerning NEB process for the Northern Gateway pipeline, another Enbridge project mired in delays.
Asked about the suitability of the NEB acting to consult First Nations on behalf of Canada, Natural Resources Canada told VICE, "The NEB is a quasi-judicial body with full authority to consider Constitutional issues within the NEB's mandate. The Government of Canada has complete confidence in the NEB's ability to consider [Section] 35 issues, within its mandate, in a thorough and reliable manner."
Municipalities along the route have expressed concern over the safety of Line 9. After the NEB approved the project in February, the city of Toronto asked for emergency shut-off valves to be installed on either side of waterways. Montreal joined over 10 Quebec municipalities in asking for hydrostatic tests to determine the strength of the 40-year old pipeline. Industry veteran Richard Kuprewicz estimated there is a 90 percent chance Line 9 will rupture. The asked-for valves have not been installed and hydrostatic tests have yet to be performed. Enbridge has indicated such tests could potentially damage Line 9.
Speaking to safety concerns, the NEB told us, "If the Board is not convinced that the project will be safe and operated in a manner that protects communities and the environment - Enbridge will not be allowed to operate that pipeline."
VICE asked Enbridge for comment for this story and received no response as of press time.
The COTTFN court challenge begins next Tuesday in Toronto. A rally is planned outside the courthouse.