Introduction
In 2002, Enbridge, a Calgary-based energy transportation company, began exploring the feasibility of constructing a pipeline system that would connect bitumen extracted from the Alberta tar sands to the Pacific Coast of British Columbia.1 In its proposed development, the Enbridge corporation has sought to construct two approximately 1,170-kilometre pipelines: one that would deliver an average of 193,000 barrels per day of condensate east to thin bitumen for transport, and a second to transport 525,000 barrels of diluted bitumen per day to a Pacific port in Kitimat, British Columbia.2 The project, if built, would connect the vast bitumen reserves of the tar sands to be marketed globally without first passing through the United States. The Northern Gateway Project, as the proposal would become known, would permit both the expansion and diversification of tar sands exports to new markets, particularly in Asia.3 It would also be a basis for the introduction of new environmental concerns. Developing this transportation corridor would introduce risks of pipeline and tanker spills to watersheds and coastal ecosystems, and, as part of an expansion of the production and consumption of petroleum resources from the tar sands, it would contribute to cataclysmic growth in greenhouse gas emissions that would threaten to press climate change beyond the point at which carbon reduction strategies could be effective.4 Connected to both political economies of resource exports and the political ecologies of petroleum development, the proposal to build a pipeline to the Pacific Coast has come to represent a synecdoche for both the dream of a new frontier for expanding Canadian bitumen trade, and the nightmare of an unmitigated environmental catastrophe.
As other contributors in this book make clear, expanding Canadian pipeline capacity to enable further export of bitumen from the Alberta tar sands rests at the centre of the current Canadian government strategy for economic development. But this expansion also threatens to disrupt ecologies and inhibit Indigenous peoples’ ability to maintain traditional sustenance economies. The federally appointed panel reviewing the Northern Gateway proposal recognized significant environmental effects associated with the project, but ultimately prioritized the economic interests linked to pipeline construction. After months of hearings, the panel determined that the benefits of a pipeline connecting the tar sands to the Pacific Coast outweighed the risks. In a two-volume report released on December 19, 2013, the review panel suggested that imposing 209 conditions on the proposed development would be sufficient to protect the environment. “After mitigation, the likelihood of significant adverse environmental effects resulting from project malfunctions or accidents is very low,” the panellists concluded.5
In this chapter, I focus critical attention on the contested process governing the proposed Enbridge Northern Gateway project. I explore the ebb of regulatory consideration for environmental and Indigenous concerns, while examining the rising tide of voices against the project. I begin by outlining the early incarnation of the Northern Gateway project as the Gateway Pipeline, and how the contours of the struggle were first defined in initial debates over its governance. Then I shift to the current incarnation of the Enbridge proposal, examining how the review process has constrained possibilities for asserting environmental concerns, and how recent legislative changes have introduced further limits on the consideration of environmental impacts. I then turn to how the review process addresses Indigenous peoples. The review process incorporates Indigenous peoples as interveners arguing before the panel, and also includes consideration of evidence on traditional knowledge. However, I argue that the panel structure denies Indigenous peoples the possibility of participating in formal decision-making. This constrained politics of recognition has seeded a growing movement of resistance, challenging not only the wisdom of pipeline development but also the legitimacy of the processes governing it. I thus conclude the chapter with a discussion of the voices denouncing this review process and its exclusionary calculus of balancing interests. Through a vibrant and inventive movement in the streets, on social media, and before the panel, people have sought to reclaim politics from nullifying governmental calculations, and with it the basic ability to debate, question, and challenge a given social order to fight for a new and better one.
Opening Salvos in the Struggle over Northern Gateway
From its inception, the governance of the Northern Gateway project has been contested, with corporate interests lobbying to streamline the approvals process while Indigenous and environmental groups struggled to assert competing interests to those of industry. In 2005, Enbridge released a preliminary information package and requested that the government establish a joint review panel (JRP) to streamline the regulatory process for what it then referred to simply as the Gateway Pipeline. Particularly, the company wanted to combine the environmental assessment of the project with its application for certification by the National Energy Board.6 As the project resonated with the economic development strategies of the federal government, regulators appeared keen to support the development of this pipeline infrastructure by easing the regulatory burden. However, Gateway encountered stiff resistance from environmentalists and Indigenous organizations. When the Minister of the Environment and the National Energy Board drafted a Joint Review Panel Agreement in 2006, the Carrier Sekani Tribal Council initiated legal action, filing a suit in federal court against the exclusion of affected Indigenous peoples from the Gateway regulatory decision-making process.7 The company delayed the project, and the claim was dropped; however, the contours of the conflict had been clearly established.
When Enbridge restarted the review process in 2008 for the Northern Gateway project, the struggle began again in earnest. In late 2009, a Joint Review Panel Agreement was released, and in early 2010, the three members of the panel were announced. They were: Sheila Leggett, a biologist with extensive regulatory experience; Kenneth Bateman, a Canadian energy lawyer and former senior executive in the Canadian energy sector; and Hans Matthews, an Indigenous geologist with extensive experience in industrial development and liaising between industry and Indigenous communities. Many remained suspicious of the panel and its perceived industry bias. Environmental organizations and community groups responded with a campaign that helped approximately four thousand people register to speak against the pipeline in the panel hearings. They also launched a public campaign attacking the project and challenging the legitimacy of the review process. Indigenous people have become leaders in this protest movement, raising concerns about the potential impacts on their traditional territories and asserting the necessity of engaging with their communities regarding developments on their traditional territories.
Development Unbound
To ensure a secure supply of bitumen exports, the government has sought to streamline regulatory processes and lift environmental protections that impede development. The formation of the JRP reduced regulatory duplications, but it also allowed the government to privilege economic frames over environmental or Indigenous concerns. In July 2006, newly elected Conservative prime minister Stephen Harper used his first international speaking engagement to boldly declare Canada’s status as an “energy superpower,” and laud the country as “a stable, reliable producer in a volatile, unpredictable world.”8 While the Canadian state has long supported Canadian petroleum production, the Harper government employed particular vigour in their dedication to the task. In particular, the state has committed to facilitating the expansion of the Alberta tar sands and its related export infrastructure, including the construction of the Enbridge Northern Gateway and the TransCanada Keystone XL pipelines, and the retrofitting of older infrastructure, such as the Kinder Morgan Trans Mountain pipeline. Government support has helped smooth the regulatory hurdles that energy transportation projects must overcome.
With relation to the Enbridge Northern Gateway project, the JRP agreement constituted the panel to consider the environmental impacts of the proposed pipeline, public and Indigenous concerns, possible measures to mitigate adverse impacts, and the broader national interest served by the project. Interpreting its mandate, the panel has narrowly framed the environmental impacts to be reviewed. Moreover, the government has enacted legislative changes subsequent to the initiation of the review process, further delimiting the breadth of issues under consideration and ensuring that the federal cabinet has final decision-making authority. Thus, there has been a consistent pattern in regulatory and government action that has constrained the recognition of environmental concerns to the benefit of the economic interests involved in the development of the tar sands and related pipeline infrastructure.
Throughout the formation and implementation of the review process, there has been a steady elision of crucial environmental issues involved in the Northern Gateway project. In a 2009 scoping document produced by the Canadian Environmental Assessment Agency prior to the formation of the JRP, climatic issues associated with the pipeline were narrowly bound to the “project-related emissions of greenhouse gas that could result from the construction and operation of the marine project components and from accidents or malfunctions.”9 Similarly, in focusing cumulative effects analyses on the socio-environmental issues associated with pipelines and shipping in isolation, the scoping document neglects the cumulative impacts of tar sands development. This frame was repeated in the JRP agreement, and when the JRP determined the issues it would be considering. This means the greenhouse gases associated with the upstream tar sands development and the downstream consumption of the bitumen shipped through the pipeline are beyond the pale of consideration for review. Similarly, the environmental impacts of continued tar sands development remained beyond the scope of the review.
Further, after vast numbers of people registered to speak before the panel and continued to raise concerns about the project despite the narrowed scope of the review, the government signalled its staunch commitment to industry over democracy. In a January 2012 open letter, Joe Oliver, the minister of natural resources, argued that the Canadian regulatory system was “broken,” and thus reforms are “an urgent matter of Canada’s national interest.”10 In particular, he criticized “the slow, complex and cumbersome federal Government approval process,” and railed against how “environmental and other radical groups” stack “public hearings with bodies to ensure that delays kill good projects.”11 To ease the regulatory burden on development, the government proceeded to rewrite Canadian environmental protections under the auspices of omnibus budget bills. Legislative changes established time limits on the review processes (including the Enbridge review already underway) and further restricted the issues under consideration.
In Bill C-38, the Jobs, Growth and Long-term Prosperity Act, the Conservative government forwarded an omnibus budget implementation bill radically rewriting environmental assessment and energy-permitting processes in Canada. The omnibus budget bill institutionalizes federal cabinet authority over environmental and energy governance processes. Changes to the Canadian Environmental Assessment Act grant the minister of the environment sweeping decision-making authority. The government introduced new language to the National Energy Board Act, providing the federal cabinet with the authority to order the National Energy Board to certify a pipeline even if the review panel recommends against certification. Under the previous regime, the cabinet could deny an application for certification under the National Energy Board that the board had approved, but could not approve an application that the board had denied. The National Energy Board, formerly in possession of regulatory authority, now serves to conduct the environmental assessment and regulatory review process, and simply recommends terms and conditions to the government. Cabinet will make the final decision, and direct the National Energy Board to deny or issue the certification for the project.
Within review and assessment processes, the omnibus bill has also made sweeping changes restricting the consideration of environmental effects. The bill repealed the Canadian Environmental Assessment Act, replacing it with a new law that significantly altered the rules about how, and if, federal environmental assessment of projects occurs. Review panels are now subject to strict timelines. For joint review processes already underway, the minister of the environment and the National Energy Board must jointly establish a time limit for a “decision statement” to be issued, although the National Energy Board is designated the sole authority regulating the environmental impacts of pipelines for future projects. Further amendments reduce protections under the Fisheries Act so that only species related to human use—members of “commercial, recreational or Aboriginal fisheries, or [fish] that support such a fishery”—are protected. The revisions also introduce a new doctrine prohibiting serious harm to fish.12 This is in contrast to the prior version of the Fisheries Act, which prevented all harmful alteration of fish habitat. Under the doctrine of serious harm, industrial activities could reduce the quality of fish habitat for years, stunting the growth of fish and decreasing their numbers, so long as the impact of these activities does not beyond a reasonable doubt actually kill the fish or prevent the fish habitat from ever recovering. Changes to the Species at Risk Act exempt energy development regulated by the National Energy Board from the requirement to minimize impacts on the habitats of species at risk.
This trajectory of governmental deregulation, streamlining environmental hurdles to development, continued with further omnibus legislation: Bill C-45. This bill replaced the Navigable Waters Protection Act with the Navigable Protection Act, largely dropping consideration of marine environments and focusing on ensuring easier transport of goods, such as bitumen. The new act delimits protection to a proposed schedule of three oceans, ninety-seven lakes, and portions of sixty-two rivers. Absent are the vast majority of the nearly thirty-two thousand major lakes and more than 2.25 million rivers in Canada from protection, notably including many of the watercourses in British Columbia along the route of the proposed Northern Gateway pipeline.
In addition to limiting the consideration of environmental issues, the government has sought to constrict the funding available to environmental organizations, and has restricted the ability of environmental organizations to participate in public reviews. It has also heightened the financial reporting requirements of environmental charities, and devoted funds to investigate whether environmental charities were engaging in political activities deemed to be incompatible with their status. Further, documents released through freedom of information requests highlight the increased dedication of government resources to surveying pipeline opponents, particularly those expected to participate in civil disobedience.13 Thus, the government has turned its attention away from monitoring environmental issues and towards monitoring environmentalists and Indigenous activists. This shift fits within a long-term strategy not only to secure pipeline access to exports, but also to inhibit the political contestation of tar sands development.
Indigenous politics have also been subject to a similar, although distinct, systematic elision. While legislative changes disappear environmental concerns from review processes, the constitutionalization of Indigenous rights in Canada provides Indigenous concerns greater resilience within formal processes. Thus, Indigenous interests continue to be selectively included, considered, and accommodated within government review processes. The JRP recognizes its obligation to consider Indigenous traditional knowledge and consult with Indigenous peoples regarding the impact of the pipeline; however, these duties are interpreted in only the most limited frames. Despite vociferous protests, numerous letters, and testimony that clearly rebukes the creation of the JRP without adequate consultation with affected Indigenous communities, the panel disregards Indigenous claims to unceded jurisdiction in their territories. Rather, much as Nadasdy has described in the Kluane territories of the Yukon, the discussion of Aboriginal traditional knowledge works to situate the “place at the table” of local Indigenous peoples, “preventing rather than fostering meaningful change by ensnaring participants in a tangle of bureaucracy.”14 Thus, rather than empowering Indigenous peoples and respecting their traditional knowledge, the limited politics of inclusion within formal review proceedings forecloses on real possibilities of addressing power relations in the colonial present.
Aboriginal rights are recognized and affirmed in the Canadian Constitution.15 Yet, in recognizing and affirming these rights, the Constitution does not create them. Rather, Aboriginal rights are a doctrine developed within Canadian jurisprudence to account for its encounter with Indigenous legal orders that preceded the existence of Canadian law, and continue to remain other to it. Indigenous peoples existed on this land as organized societies governed by their own laws prior to the Canadian Constitution, prior to the formation of the Canadian government. Further, in British Columbia, the majority of Indigenous peoples have never ceded their lands or their systems of governing them. The Supreme Court of Canada has established that the government holds a responsibility to reconcile the settlement and development of the land with Aboriginal rights and title.16 It is on this basis that the Canadian government retains distinct obligations with regards to Indigenous peoples.
However, the current Conservative government has sought to recognize these obligations in a minimal form. The process through which the government is rewriting environmental law disrespects the aforementioned relationship between Indigenous peoples and the Canadian state. The omnibus bills not only truncate parliamentary debate and further denude the already limited democratic process in Canada, but they also fail to consider and consult with Indigenous communities affected by the changes. In contrast to the majority of the Canadian population, which is concentrated along the American border, Indigenous peoples maintain significant populations in remote regions affected by industrial developments. While the benefits of industrial developments often enrich investors, environmental degradation regularly has the most pronounced impacts on Indigenous communities.
With regard to the Enbridge Northern Gateway project, the government has suggested that the review process will address the majority of state obligations regarding the consultation of Aboriginal peoples. However, the JRP was unilaterally imposed on Indigenous peoples without their consent. The terms of reference and the list of issues were not developed through meaningful consultation. Furthermore, in practice, much of the consultation has been left to Enbridge, which routinely misunderstood local Indigenous protocols—for instance, showing disrespect by leaving a feast early in Gitxaala. Indigenous communities raised substantial concerns about consultation, including inadequate time or funding to participate, lack of discussion around specific mitigation strategies, insufficient respect for Aboriginal title, and failure to incorporate culturally relevant concepts into project planning.
Indigenous concerns are only selectively included in the review process for the Enbridge pipeline. As Richard Milligan and I have detailed elsewhere, the containment of Indigenous concerns, the studied neglect of Indigenous jurisdiction, and the normalization of colonial structures of authority are evident in the selective inclusion of Carrier Sekani concerns.17 The Carrier Sekani Tribal Council used Enbridge funding to conduct an independent Aboriginal Interests and Use Study on the impacts of the pipeline.18 This study highlighted their concerns that the JRP process did not respect their Indigenous jurisdiction over their lands.19 On this basis, the Carrier Sekani decided not to participate in a review process. Nonetheless, Enbridge putatively included its concerns by summarizing the study in one of the volumes of its application.20 However, the original research has not been submitted—only the Enbridge summary, which crucially neglected the jurisdictional concerns of the Carrier Sekani. Thus, while the Enbridge application gestures to a consideration of their traditions and interests, the key findings delegitimizing the JRP are excluded from the review process.
The bounded recognition of Indigenous difference is also inscribed on the JRP record in its approach to what the record refers to as “native words.” While numerous Indigenous witnesses insisted on presenting their evidence in their own language, or employed Indigenous concepts as part of their presentations on their traditional knowledge, this information only irregularly entered the record. The transcriber never asked speakers to clarify or spell terms in their own language, and instead regularly dropped terms from the record, simply inserting the phrase “native word” in bracketed text, or occasionally interjecting haphazard phonetic attempts to capture concepts. For instance, in Fort St. James, when Jim Munroe was presenting on the traditional system of keyoh (territory or trapline) holdings, a series of Dakelh terms were rendered illegible in the published transcript: “There are laws around that. There’s terms in our language it’s called (native word) and (native word) and it means they did—people disappear if they don’t respect the land and they don’t ask.”21 This silencing of Indigenous terms from the official record reflects an underlying disregard for Indigenous conceptual frameworks, despite the putative inclusions of Aboriginal traditional knowledge in the hearings. These exclusions are rationalized on the basis that the hearings process is recorded in “either of the official languages [French and English], depending on the languages spoken by the participant at the public hearing.”22 The fact that Indigenous languages are unrecognized as “official” languages underlines how, despite the ostensible inclusion of Indigeneity, the underlying framework of regulation remains an imposed and colonial one.
Further, in calling forth Indigenous testimony in oral evidentiary hearings, the panel sought to foreclose Indigenous traditions to remembrances of hunting and gathering. While the panel listened disinterestedly to testimony of Indigenous governance traditions, they rebuked Indigenous presenters who dared challenge the legitimacy of the JRP process. For instance, Haisla Hereditary Chief Gupsalupus, Henry Amos, in his testimony before the panel, questioned how people could trust the JRP, noting the panel had no Haisla representation. Instead, the panel was solely “appointed by the Federal Government … the same government that is telling the world that this project should go ahead.”23 Chief Amos challenged how the review process had from its outset systematically disadvantaged Haisla people. The process was designed by and ultimately accountable to a federal government that felt the need to articulate its “commitment to diversify our energy markets” on the eve of hearings on an export pipeline.24 Joint Review Panel chair Sheila Leggett chastised Chief Amos, informing him that their purpose was “to listen to your oral evidence that wouldn’t be able to be put in writing.”25 She elaborated that the hearing order and published JRP information indicated that the panel was looking for Aboriginal people to present “traditional knowledge.”26
Sadly, Haisla traditional knowledge provides not simply a record of how their people used their lands, but also how government indifference to Haisla concerns has continually supported industrial development to the detriment of Haisla territories and self-determination. Ellis Ross, elected chief councillor of the Haisla Nation Council, relayed how his father had been unable to continue generations of traditional harvesting on the Kitimat River due to pollution from the mill. “That is my traditional knowledge,” Ross stated.27 Where the Haisla once taught their children to use their traditional resources, now the elders can only remember how they once used their lands and waters. These stories of environmental degradation and government neglect are now the traditional knowledge of the Haisla people. Speaking of his traditional knowledge and responsibilities, Ross described the need to continue to listen to and learn from these horrible stories of the destruction of their lands and impositions on their self-determination. This, according to Ross, was necessary so people would “make sure that doesn’t happen again.”28 Permitting the Enbridge pipeline would violate these responsibilities to Haisla tradition, although considering this breadth of tradition as a framework that included contemporary politics remained beyond the scope of the JRP process.
Resistance Unfurled
Government servitude to oil and gas interests has spurred further resistance. In the review hearings, Indigenous people and settlers have spoken poignantly about their frustration and feelings of government disregard. There has been eloquence, but also anger. Throughout their travels, the panel has been accompanied by protests. Indigenous peoples have been at the centre of this movement against the pipeline since its earliest inception. They remain on the frontlines of environmental struggles as the first affected, living in remote communities and often continuing to rely on traditional foods as a key source of nutritional and cultural sustenance. But more than this, Indigenous peoples are becoming the last defence against the Conservative agenda, as Indigenous rights derive from their inherent status as distinct peoples rather than from statutes that can be amended at any time. In the wake of the recent omnibus amendments, the prominence of Indigenous peoples in the movement against government toadying to industry has only grown. The movement against Enbridge has not only fought unsustainable tar sands development; it has reclaimed democracy and reasserted Indigenous space with flash mobs of round dancers in crowded malls, marches through city streets, and blockades on rail lines and highways.
Members of the Wet’suwet’en Nation protesting all proposed pipelines that would cross unceded Wefsuwet’en lands, as part of the first annual Unisfot’en Action Camp, 2010.
Struggling to uphold traditional responsibilities to govern the land, Indigenous peoples have banded together in opposition to the pipeline and allied with concerned settlers across the country. In December 2010, sixty-one First Nations issued the Save the Fraser Declaration, asserting a collective commitment to prevent “the proposed Enbridge Northern Gateway Pipelines, or similar Tar Sands projects, to cross our lands, territories and watersheds, or the ocean migration routes of Fraser River salmon.”29 By December 2012, the declaration had garnered more than 130 signatories. In 2013, a Solidarity Accord was added to the declaration, adding the voices of municipal governments and leaders from the tourism industry, health and environmental organizations, and prominent unions.30
A series of lawsuits have sought judicial review of the JRP. These include applications by the Haisla and the Gitxaala, as well as environmental groups. The lawsuits assert that the JRP erred in privileging consideration of the economic benefits of the Enbridge Northern Gateway project over the adverse effects of the development on Indigenous peoples and the environment. But activists are not simply relying on state law.
In building these networks of solidarity, Indigenous people have mobilized their traditional connection to their lands and asserted the necessity of recognizing new geographies of responsibility that follow the contours of global financial networks and supply chains. Carrier Sekani communities have erected signs on their territories warning Enbridge and its contractors against trespassing, and threatening to prosecute violators on the basis of Indigenous law. Indigenous activists also brought their claims to Enbridge’s 2011 and 2012 annual general meetings in Calgary and Toronto, respectively. Wearing traditional regalia bearing symbolic connections to their territories, Indigenous peoples extended Indigenous legal orders to engage companies as subject to this body of law, thereby reterritorializing the geographies of resource development and environmental governance.31
Further materializing Indigenous jurisdiction on the landscape, particular Indigenous groups have begun to establish blockades. The Unist’ot’en, associated with the C’ihlts’ehkhyu or Big Frog Clan of the Wet’suwet’en people, have established a camp along the Enbridge Northern Gateway route at the junction of Gosnell Creek and Wedzin Kwah (Morice River). Blocking the development of pipelines, activists such as the Unist’ot’en invert the geographies of resource extraction. Where Canadian regimes governing industrial development contain Indigenous politics to mobilize processes of resource extraction, blockades mobilize Indigenous politics to stop the movement of resources through Indigenous territories. The Unist’ot’en resurgence has further sought not only to politicize the Enbridge Northern Gateway, but also to highlight the proliferation of pipeline projects in association with natural gas fracking in northeastern British Columbia. The route of Northern Gateway across Unist’ot’en territories overlaps with that of the proposed Pacific Trail Pipeline for liquefied natural gas. Linking the issues involved in unconventional natural gas and tar sands development, the Unist’ot’en have helped raise the profile of the many proposed liquefied natural gas pipelines in northwestern British Columbia.
The Canadian government has sought to recognize only a delimited sense of its obligations to Indigenous peoples, who have issued vital challenges on the basis of their own dynamic traditions. The content and meaning of Indigenous law cannot be restricted to government frames. Indigenous traditions, contrary to the constrained frames of the review process, are not only about how Indigenous peoples traditionally used their resources. Their traditions are also about how they governed, and the legal responsibilities of stewardship that framed their governance activities. As the government seeks to systematically abandon its environmental responsibilities, increasingly, Indigenous law has become a crucial framework to articulate both the possibility and the necessity of an alternative.
