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The Yinka Dene Alliance (YDA), composed of six Carrier Sekani First Nations, is ramping up the enforcement of its own laws in the face of Enbridge’s efforts to begin preliminary work in YDA traditional territories to prepare for the proposed Northern Gateway pipeline. YDA is vocally opposed to the proposed pipeline and its member nations are all signatories to the Save the Fraser Declaration banning the pipeline from their traditional territories.
The federal Joint Review Panel (JRP) tasked with assessing Enbridge’s Northern Gateway pipeline proposal closed its hearing process in June 2013, but likely will not make its recommendation on whether the pipeline should go ahead until the year’s end. In the meantime, Enbridge has applied to British Columbia to obtain permits to conduct geotechnical work, including drilling bore holes and clearing trees, in order to better inform the location of the proposed pipeline.
Although a decision on whether to reject or allow the pipeline following the JRP recommendation is the responsibility of the federal government, BC is also responsible for issuing approvals that would be required for the pipeline to proceed. For this reason YDA has repeatedly sought government-to-government discussions with BC about the pipeline. None have yet occurred. In response to Enbridge’s current permit applications, YDA communicated to BC its view that, as a matter of Canadian constitutional law, the Province must consult with YDA on a government-to-government level about Enbridge’s pipeline proposal as a whole before issuing any permits that would advance the pipeline.
BC, in its own JRP submission, stated very strongly that it opposes approval of the Northern Gateway pipelinebecause of the serious unaddressed safety concerns associated with the project. However, BC Ministry offices maintain that the processing of Enbridge’s current permit applications is a separate and distinct issue from the overall pipeline proposal which is still being deliberated by the JRP.
In response to Enbridge’s permit applications, the BC Ministry of Forests, Lands and Natural Resource Operations recently offered at least two land tenures to Enbridge and expects to finalize and issue the related permits within the next couple weeks. This puts the Province in a position that is difficult to reconcile: BC is delaying government-to-government discussions with YDA about the pipeline until after the JRP has made its recommendation, yet in the meantime it is granting Enbridge permits to conduct preliminary geotechnical work.
Deeply troubled by the Province’s approach, YDA nations have started to increase activities to enforce the prohibition of the proposed pipeline in their traditional territories as a matter of Indigenous law. YDA nations, which have not ceded control over their traditional territories through war or treaty, exercise unextinguished rights and title in their territories and draw from their traditional decision-making authority and environmental stewardship responsibilities to ground the application of their law.
Pointing to the Save the Fraser Declaration as a clear expression of the ban on the proposed Northern Gateway pipeline in their traditional territories, YDA nations sent a cease and desist letter to Enbridge dated June 26, 2013, which stated that any entry by Enbridge onto YDA lands in relation to the proposed pipeline would be treated as an act of trespass. In addition, YDA nations have posted signs in the relevant areas of their traditional territories advising Enbridge employees and contractors that any unauthorized entry will be treated as an act of trespass and have published public notices with similar wording in local newspapers.
As the autumn unfolds, the Province’s response to YDA will show whether BC is ready to match the strong stance it has taken against Enbridge’s proposed Northern Gateway pipeline with meaningful action on the ground.
By Gavin Smith, staff lawyer