01/19/2012 05:43 EST | Updated 03/20/2012 05:12 EDT

How Aboriginal Rights Could Stop Enbridge

If the Enbridge review hearings rubber-stamp the pipeline, or Prime Minister Stephen Harper pushes it through, expect a First Nations lawsuit to kill it. The First Nations are the loudest and strongest in protest, and those who most deserve backing.


The debate over the proposed Enbridge tar sands pipeline is raging in Canada, but its destiny was in reality settled on November 26, 2010, in a community centre in Williams Lake, British Columbia.

Chiefs and leaders from 60 First Nations gathered there to sign a declaration banning the transport of Alberta tar sands oil across their lands to the Pacific coast -- an export route to Asia and California championed by the Canadian Prime Minister ever since U.S. activists delayed construction of the Keystone XL, and now an even greater priority since Obama's full denial of that pipeline.

By last month, the number of First Nations in B.C. and Alberta opposed to Enbridge's Northern Gateway had risen to 130, an unprecedented show of unity and power.

"We are an unbroken wall of opposition," says Chief Jackie Thomas of the Saik'uz First Nation.

So when Canadian Natural Resources Minister Joe Oliver ignited controversy last week by accusing environmental "radicals," "jet-setting celebrities," and U.S. "foreign interests" of hijacking public hearings for the pipeline's approval, he was avoiding the issue: The decisive threat to this latest corporate oil scheme are Canada's Indigenous nations.

There's no doubt environmentalists, municipalities, and citizens oppose Enbridge's $5.5 billion plan for many of the same reasons as First Nations: The 730-mile pipeline would carry 500,000 barrels a day of dirty oil across hundreds of fish-bearing rivers and lakes, cut through tracts of pristine wilderness, then launch supertankers through treacherous waters. Oil spills and other disasters -- think Exxon Valdez, which happened not far from the B.C. coastline -- are a certainty.

But it is First Nations who are the loudest and strongest in protest, and who most deserve backing. They are the ones most affected by the industrial operations dotting and criss-crossing their traditional territories. Enbridge's pipeline would pose a permanent danger to B.C.'s Fraser River watershed -- and so the many First Nations who rely on it for their food, livelihoods, and cultural sustenance see the project as a threat to their very survival. Living and depending on these lands, they are their first and fiercest defenders.

First Nations should be at the forefront of this fight for another very good reason: Their legal position is uniquely strong. As they have struggled to halt, delay, or minimize the effects of polluting and carbon-spewing projects in B.C. and elsewhere, First Nations have won a set of tools -- Supreme Court precedents, constitutional protection, and the United Nations Declaration on the Rights of Indigenous Peoples -- that increase their chances of winning back control over their lands. Better than anyone else, they can stop unwanted development.

In B.C., the possibilities are the greatest: The lands over which the pipeline would cross, and indeed most of the province, were never ceded by First Nations. Their claims were affirmed by the historic Supreme Court of Canada Delgamuukw decision in 1997 that recognized First Nations still held Aboriginal title -- a legal concept. The decision sent tremors through the country: If the judges were listened to, First Nations would have a say in development decisions, share sovereignty, or even be granted ownership over the land itself. In other words, the province was still up for grabs.

Government and industry have only partially succeeded in ignoring the courts and regaining the upper hand. They've spent 15 years entangling B.C. First Nations in dead-end negotiations whose goal is to ensure these rights are never given life. But the rulings have still created enormous uncertainty over land rights. "Our title underpins this fight," says Chief Thomas. If the Enbridge review hearings rubber-stamp the pipeline, or Prime Minister Stephen Harper pushes it through, expect a First Nations lawsuit to kill it. Even former federal Aboriginal Affairs Minister Jim Prentice, now a corporate pipeline backer, has conceded First Nations have a "very strong case."

Indigenous rights have thus reshaped the debate over the pipeline. But if these rights are one day implemented on the ground, they could reshape the country's very geography. An upsurge of Canadians calling for their enactment could tilt the balance of power away from corporations and back to First Nations, transforming the management of our lands and waters. This means that supporting Indigenous rights is not simply about paying off Canada's enormous debt for generations of crooked dealings: it is also our best hope of saving entire territories from endless and senseless extraction and destruction.

After all, we're not just talking about the blocking of one pipeline or some industrial projects. This is about the right to reimagine our relationship to the environment. And First Nation's are resisting precisely to protect the alternatives: like the unrivaled marine eco-management system of the Haida Nation, near whose stormy shores on the B.C. coast an oil tanker would spell catastrophe. Or, like so many First Nations along the trail of the potential pipeline and across the country, who are struggling to win recognition of conservation agreements, of sustainable forestry, of the possibility of mixed economies, and of the principle that we must respect the environment that we are a part of.

Though most of these First Nations struggles long predate the new political war over climate change, it's about time we start thinking about them as our own most important battles. As the uses to which we put our land, air, and water accelerate resource depletion, biodiversity loss, and the climate crisis, First Nations struggle to reverse the course take on heightened importance. In trying to protect their rights, they fight for us all.