Manitoba’s aboriginal chiefs have thrown a legal obstacle at Ottawa’s energy agenda by challenging the Trudeau government’s approval for Enbridge’s Line 3 pipeline.
The Assembly of Manitoba Chiefs (AMC), the province’s largest First Nations political group, filed a petition for a judicial review Dec. 27 with the Federal Court of Appeal, naming the attorney general of Canada and Enbridge Pipelines Inc. as respondents.
The group, which represents leaders from 62 Manitoba First Nations, argues federal approval for the pipeline was based on a flawed regulatory process.
They want the court to quash the federal approval or, at the very least, send it back to Ottawa with strict conditions for cabinet to take indigenous perspectives into account and review the decision again.
"You have to understand the history to understand the approach we’re taking," AMC Grand Chief Derek Nepinak said Friday.
"The Line 3 replacement project presents a unique opportunity to seek redress for decades of neglect when it comes to treaty and inherent land-title issues.
"The dispossession of lands from indigenous people, through Indian Act policy, residential schools, the laws to prevent people from using their lands or accessing our traditional practices in our ancestral lands."
In November, Prime Minister Justin Trudeau gave the green light to the Kinder Morgan Trans Mountain pipeline expansion, which adds 980 kilometres of new pipeline between Edmonton and Burnaby, B.C.
While there were immediate protests from opponents of the Trans Mountain expansion, there was little in the way of public criticism over the Line 3 approval.
The $7.5-billion 1,660-kilometre project would replace a 40-year-old pipeline that runs from Hardisty, Alta. to Superior, Wis., through dozens of treaty land holdings in Saskatchewan and Manitoba.
Enbridge wants to complete the replacement, which would nearly double its capacity, by December.
At issue is the way the National Energy Board conducted its public hearings in Winnipeg more than a year ago. The board butted heads with the AMC over the kind of evidence elders and knowledge-keepers could present and the setting in which they could be heard.
"Indigenous nations and their citizens should have had the opportunity for meaningful receipt and sharing of information, which would have allowed for true consensus to be reached about the project," the petition says.
"Instead, the (cabinet) decision relies on a process which treated consultation and accommodation as an afterthought and diminished the ability of indigenous nations and citizens to be heard."
The chiefs contend that the process contravened Canada’s constitutional requirements to consult meaningfully with indigenous peoples. They also say it was at odds with the United Nations Declaration on the Rights of Indigenous Peoples and Trudeau’s pledges that Ottawa would reset the country’s indigenous relations on a "nation to nation" basis.
The suit is the AMC’s way of reminding Ottawa about the necessity for reconciliation.
"We have to come to a place and chose a starting point for the implementation of reconciliation... That means creating balance, creating equity in relationships," Nepinak said.
"This is an opportunity to create awareness about the history of marginalization, economically, socially and geographically within our own treaty lands."
The National Energy Board approved the project last April. It has White House approval in the United States, but still requires separate state permits. A Natural Resources Canada spokeswoman acknowledged the AMC’s action Friday by email.
"No relationship is more important to the government than the one with indigenous peoples. However, in this particular instance, we are not in a position to comment further as the matter is before the courts."
A spokesman for Enbridge said the company is working on a formal legal response.
The oil company defended its role in meeting regulatory requirements and Ottawa’s decision to approve the project.
"The review that led to the government’s decision was comprehensive, including its enhanced indigenous consultation. Enbridge also engaged extensively with indigenous communities, representing the largest engagement program in the company’s history," company spokeswoman Suzanne Wilton said in an email Thursday.
"There is strong support for this project. The Line 3 replacement program is an essential maintenance project that will ensure the continued safe and reliable delivery of the energy North Americans need and use for their everyday lives."