Generations of Indigenous leaders brace for a new battle over another pipeline

Grand Chief Stewart Phillip speaks1 during a news conference for an announcement of funding to Indigenous led conservation in B.C. at the 2023 B.C. Cabinet and First Nations Leaders’ Gathering in Vancouver, on Friday, Nov. 3, 2023. THE CANADIAN PRESS/Ethan Cairns

For many First Nations youth, it’s a whole new call to action.

“My ancestors — all the ancestors of every First Nations person here in what is now called British Columbia — have stories about our people having to stand on the front lines, rain or shine,” said Katisha Paul, the youth representative for the Union of B.C. Indian Chiefs and co-chair for the United Nations’ Global Indigenous Youth Caucus.

“It’s our responsibility to continue on this journey.”

Longtime Union of B.C. Indian Chiefs Grand Chief Stewart Phillip has been around for many of those acts of resistance. He was for years one of the public faces of Indigenous protests against the failed Northern Gateway pipeline project and other resource extraction projects he said threatened his community’s way of life.

That opposition is stirring again, after Prime Minister Mark Carney and Alberta Premier Danielle Smith signed a memorandum of understanding last week that sets the stage for a pipeline to B.C.’s coast.

Phillip, who represents more than 100 chiefs in the province, said conflicts over oil pipelines have become “ritualized” in B.C. — a ritual he’s come to know well.

He said the current pipeline debate is in the first stage now — the stage where politicians attempt to sway public opinion. Carney’s government has stumbled out of the gate by leaving First Nations out of the loop, he said.

“The First Nations in British Columbia are completely outraged that there was no effort whatsoever made to consult with First Nations that will be impacted by a pipeline project to coastal waters,” Phillip told The Canadian Press.

“We will not stand idly by while governments collude behind closed doors and come up with ludicrous notions of attempting to get yet another fossil fuel pipeline to coastal waters,” he added, calling the agreement between Ottawa and Alberta “the most egregious dismissal of our constitutional and legal rights.”

That agreement commits the two governments to working toward building an oil pipeline to the West Coast — and opens the door to changes to the coastal tanker ban.

The agreement says Ottawa’s commitment is contingent on the pipeline being approved as a project of national interest, and on the project providing “opportunities for Indigenous co-ownership and shared economic benefits.”

Despite that vague promise of Indigenous co-ownership, no First Nations leaders were consulted on what the memorandum of understanding would look like — not even those who are open to the idea of one.

The Confederacy of Treaty 6 First Nations, whose members cover vast swaths of the three Prairie provinces, said in a media statement Friday it was “disappointed” by First Nations’ exclusion from the pipeline talks and insisted they must have a seat at the table when decisions are made that affect their people.

“Treaty No. 6 Nations are the only rights holders on this land — there would be no Alberta without treaty. It is unacceptable that we need to request this. There can be nothing for us, without us,” the group wrote in a media statement.

“Despite this, we are looking forward to the opportunity to be included as part-owners in nation-building projects moving forward,” the group said, adding the memorandum of understanding offers “an opportunity for First Nations to be included in economic ventures that will provide long-lasting equity for our communities.”

Merle Alexander, an Indigenous resource lawyer based in Victoria, said First Nations’ right to be consulted on government actions that might affect treaty rights — the so-called “duty to consult” affirmed by the Supreme Court — wasn’t invoked by the agreement between Alberta and the federal government.

But it won’t take long for the current pipeline push to trigger the duty to consult, he said — especially if the project is referred to Ottawa’s new major projects office.

Alexander said the rights of one First Nation cannot trump those of another under the law and the duty to consult does not cease to exist simply because a project has one or more Indigenous communities backing it.

“It’s all going to come down to whether or not the federal government actually does fulfil the duty to consult in a vigorous way,” he said.

Alexander said that after First Nations went to court to challenge the Trans Mountain consultation process, the federal government introduced a new process less vulnerable to court challenges. He said that might make it difficult for First Nations opposed to a new pipeline to argue governments and industry didn’t fulfil the duty to consult.

“First Nations need to think outside the box in terms of different legal strategies,” Alexander said, citing the unsettled question of Aboriginal title, the government’s legal term, along the pipeline’s corridor.

While no one knows yet which route the pipeline might take — since the project doesn’t even have a private sector backer yet — any established Aboriginal title along the path would change the standard of consultation from the low end of the spectrum to something more like consent, he said.

“There’s all this conversation about ‘First Nations don’t have veto rights,’ but that assumes they don’t have Aboriginal title,” Alexander said.

Several First Nations have proved title over lands in B.C. in recent decades — including the Haida, who signed an agreement with Ottawa and the province earlier this year confirming their title over Haida Gwaii, territory covering nearly one million hectares on B.C.’s coast.

Assembly of First Nations National Chief Cindy Woodhouse Nepinak acknowledged Canada is facing uncertain economic times, but said the push to deal with that has limits.

“Canada can create all the MOUs, projects offices and advisory groups (it wants), but chiefs will be united — and are united — when it comes to the approval of projects on First Nations lands. There will be no getting around rights-holders,” she said.