Internal documents obtained by B.C.'s Haisla Nation show the federal government had concerns about the consultation approach proposed for Enbridge's Northern Gateway pipeline since at least 2009.
The documents, requested by the Haisla Nation nearly four years ago, were released through Access to Information legislation recently and show the federal government was warned it wasn't fulfilling its duty to consult aboriginal peoples as required under Section 35 of the Canadian Constitution.
An Environment Canada email included in the documents contained a list of concerns regarding the consultation process, stating, "it is not clear that [the process] would meet the honour of the Crown duty."
The email also acknowledged "First Nations were not involved in the design of the consultation process" and that there was a "lack of clarity" concerning First Nations' rights and title.
Haisla Nation Chief Coun. Ellis Ross said he received the trove of documents with "mixed emotions."
"We're very satisfied to know the staff of Environment Canada agreed with us in terms of the inadequate process in place to address rights and title," Ross said. "But it's disappointing this information is in our hands now when we can't do anything with it legally or politically."
"But it does confirm what we've been saying all along about the process when it comes to rights and title is very inadequate. It doesn't even follow case law."
Under Section 35 of the Canadian Constitution Act, the government is obligated to "recognize and affirm" First Nations rights, including the right to traditional land and cultural practices. The Crown has a "duty to consult" First Nations on any projects planned for traditional territory or projects that may affect aboriginal rights.
The National Energy Board conditionally approved the controversial 1,178 kilometre Northern Gateway pipeline in June 2013 despite broad opposition from First Nations and other British Columbians.
"Now we can see that Canada's own environment ministry agreed with us," Chief Fred Sam of Nak'azdli said.
"For years Nak'azdli and the Yinka Dene Alliance have said to Canada that its approach to consultation for the Enbridge proposal is seriously flawed," he said.
Eight First Nations including the Haisla, the Nak'azdli and Gitxaala Nations have launched a legal challenge against the pipeline on the basis of inadequate consultation.
Chris Tollefson, lawyer with the University of Victoria Environmental Law Centre, said the lack of appropriate consultation was apparent from the moment the Joint Review Panel (JRP) hearings for the Northern Gateway pipeline began.
"At the hearings I could see the frustration of the First Nations that were participating in terms of the inability of the process to deal with their constitutional rights and their issues," Tollefson told DeSmog Canada.
"The JRP in my view was never clear on what its role was in relation to consultation and that uncertainty, I think, will ensure that this issue is before the courts for some time. Because in the end that consultation, from my perspective, was never duly discharged."
When it comes to Section 35 of the Constitution, "the first principle is that First Nations have a right to be consulted on projects that would affect their rights or their title; in short, their livelihood and life and right to occupy traditional territory," he said.
Tollefson said the federal Court of Appeal will hear the case of the eight First Nations as well as two environmental organizations -- including BC Nature which he represents -- against the Northern Gateway pipeline's approval in Vancouver this October.
An additional Transport Canada email released to the Haisla, dated Aug. 31, 2009, also expressed doubt in the adequacy of the government's approach saying "the consultation plan as written does not appear to be flexible enough to account for changing circumstances and incoming information."
Both the Environment Canada and Transport Canada emails were sent to the Canadian Environmental Assessment Agency, which was seeking input from government agencies on Crown consultation.
Despite these doubts the federal government "charged ahead" with its consultation process, Chief Sam said.
"Now, many First Nations have been forced to go to court to challenge Canada's Enbridge decision," he said.
Gitxaala Nation Chief Clarence Innis said he's "shocked" that, despite the apparent level of uncertainty about consultation, "Canada pressed ahead with this dishonourable treatment of our Nation and other First Nations."
"This confirms the justice of our principled opposition to the shipping of bitumen through our territory and British Columbia's Northwest Coast," Innis said.
For Haisla legal counsel Ellis Ross, the documents cast a shadow on the traditionally fraught relationship between First Nations and the federal government.
"We're trying to follow the rules, and case law principles -- the Haisla isn't blocking roads or anything -- we're trying to follow the courts," he said.
"But with Canada, it's like the rules are there to be bent or broken."
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