Despite Ottawa’s approval on Tuesday for the controversial $7-billion project to triple the flow of bitumen to the West Coast, an expert on aboriginal law said it’s actually Canada’s courts that will ultimately be what decide Trans Mountain’s fate.
Lawyer Bill Gallagher, author of Resource Rulers: Fortune & Folly on Canada’s Road to Resources, cited this summer’s Supreme Court rejection of the Enbridge Northern Gateway pipeline — overturning its federal approval on the grounds that First Nations hadn’t been adequately consulted, as required by the Canadian constitution.
Metro’s Pipelandia series:
- Pipelandia 1: Kinder Morgan deadline haunted by ghosts of ‘broken’ process
- Pipelandia 2: Kinder Morgan tankers pit ‘world leading’ against ‘Titanic mentality’
- Pipelandia 3: ‘It is not over yet’ say pipeline neighbours after Kinder Morgan OK’d
- Pipelandia 4: ‘You can meet them in court—or you can meet them at the barricades’
- Pipelandia 5: B.C. holds ‘last obstacle’ between Kinder Morgan and its pipeline dream
While the former Calgary corporate lawyer and Ottawa energy regulator told Metro he has “no crystal ball” to predict individual outcomes, First Nations primarily from B.C. have gradually changed the dial through the legal system.
Kinder Morgan, he argued, will likely be no different. Here are just a few of those key court cases:
1973: Calder (Nisga’a)
The Nisga’a Nation sues B.C. over logging on its territories. It is the first time Canada’s Supreme Court acknowledges aboriginal land title existed before colonization.
1990: Sparrow (Musqueam)
This case against a Musqueam Nation fisherman was the first Supreme Court test of Canadian constitution’s protection of aboriginal rights.
1997: Delgamuukw (Gitxsan/Wet’suwet’en)
Supreme Court of Canada rules governments must consult with First Nations, and if they must infringe resource rights to compensate them.
2004: Haida Nation
Supreme Court declares government must meaningfully consult and accommodate aboriginal groups before exploiting their traditional lands.
2014: Williams (Tsilhqot’in Nation)
In a massive historic win, Canada’s top court rules government must get First Nations’ approval to exploit resources on title lands, unless consulted and proven in public interest.
The Federal Court of Appeal rejects Ottawa’s 2014 Enbridge’s Northern Gateway pipeline approval, ruling it hadn’t adequately consulted affected First Nations.