Pipelines and Battle Lines Drawn by Harper Government


The paths, inexorably to a meeting point to violence, can only be changed by the senior governments, especially the feds. The cause of these paths are three: 1. the proposed Enbridge oil pipelines to Kitimat, carrying bitumen (sludge from the Tar Sands) mixed with gas (condensate), with one line running the condensate to the Tar Sands; 2. the Kinder Morgan line bringing the Tar Sands (and if the company has its way, much more of them) to Vancouver Harbour; 3. the tanker companies that would ship this gunk from Kitimat, down through the dangerous Inner Passage to China or the US – and those taking it through the dangerous 2nd Narrows into the Salish Sea, again bound for Asia or America.
Before going further, these projects are not only opposed by First Nations – polls show 80% of British Columbians oppose the tanker traffic and, of course, the pipelines are useless unless the gunk can be shipped.
The matter came to a head when President Obama refused to pass the Keystone XL pipeline from Alberta to Houston. Instantly, federal Finance Minister Jim Flaherty announced that the BC lines must therefore be put on the “fast track”, overlooking, one supposes deliberately, the mandate of the National Energy Board to hold hearings (whose completion time was extended this week by a full year, due in part to the enormous number of citizens and organizations who’ve registered to speak at these hearings). In fact, Flaherty confirmed suspicions that the Federal Government regards this process as a nuisance to be done then ignored.
Over the past few years First Nations have made it clear that this – in former Coastal First Nations’ President Gerald Amos’ words – “is not going to happen”.
Let’s look at the position of First Nations today.
This from an article I did here on December 4. This is saying a hell of a lot but the coverage of the events I’ll deal with were marked by one of the lousiest examples of media mis-reporting I can remember.
…Damien Gillis and I attended a press conference last Thursday called by First Nations who would be impacted by scheduled pipelines and tankers to outline their “Save the Fraser Declaration” – a document that leaves no doubt about their unified opposition to these proposals. In all, 131 nations have now signed on.

Moreover, this declaration almost certainly will be signed in the near future by the Tsleil-Waututh First Nation, who face the proposed expansion of Kinder Morgan’s pipeline from the Alberta Tar Sands to their traditional territory on Burrard Inlet. The Tsleil-Waututh first came out against the company’s plans – which could see up to 300 super tankers loaded with Alberta bitumen plying the waters of Vancouver – in a press release last month…

This hugely important event received a brief column in the Business Section of The Vancouver Sun while the following day’s front page story – with a banner headline – told how Elmer Derrick, one of 60-plus hereditary chiefs of the Gitxsan Nation, had made a deal with Enbridge.

So typical for this sad excuse for a newspaper – bury the big story about an agreement that 131 Chiefs make and pounce with glee on the one who dissents.

Reaction from the Gitxsan was quick with opposition to refuse to recognize the agreement, saying that Derrick was not speaking for them – as this video taken at an emergency community meeting just days after the announcement of the deal demonstrates.

Enbridge fired back that they were comfortable with the deal with Derrick and had many other Nations on side and that they would proceed with signing with them and others.

In jumped Joe Oliver, federal Natural Resources Minister, as reported by the Sun: “[Oliver] said the project, if approved by the National Energy Board, shouldn’t be
held hostage by aboriginal and environmental groups threatening to
create a human ‘wall’ to prevent construction.” The minister continued, “Look, this is a country that lives by the Rule of Law and I would hope that that would be the standard going forward…we can’t let unlawful people oppose lawful development.”

I, apparently, came to Mr. Oliver’s mind – and to remove all doubt, sir, I will indeed be part of that human “wall” and perhaps I should tell you why.

I hardly need any publicity in this my native and much-beloved province. At any age, but especially at 80, I’ve no wish to expose myself to the health hazard posed by prison, but I can’t stand idle while the very essence of this land will be desecrated to satisfy greed without the consent of its people.

Interesting approach. I would have thought he would have said, “When the National Energy Board makes its report and if it supports Enbridge, we hope that the company can get approval from the First Nations involved.”

The scene now shifts back to Mr Derrick. Just yesterday – after going into hiding for five days from the media that had given him so much press – he had an op-ed piece in, where else, The Vancouver Sun, which, apparently, has become a great fan of his.  In it Mr. Derrick extols the virtuousness of his involvement with Enbridge and who is in and speaks for the Gitxsan and why. Interesting story but not a single solitary syllable about the environment – nor about the recent controversy of his own making, or even his alleged firing from his job as a treaty negotiator by the community he purportedly represents!

Now I don’t wish to intrude on Gitxsan politics but wouldn’t the rank and file expect their leader, who has made them $7 million for something to be received sometime, would discuss the many questions being raised by 131 of his colleagues and neighbours – men and women of many tribes – all opposed to Enbridge?

Enter the Lawyer. For any decent dispute you need lots of them. Name of Nigel Bankes from the University of Calgary. I can’t tell you what got him cranked up…was it Mr. Derrick? The Conservative government? Enbridge? The Vancouver Sun? Or did he just wake up one morning and decide to unburden himself of his long commitment to the principle that parliaments can do whatever they want?

His contribution consists in telling us that Enbridge does not need to get permission for its pipelines from “every first nation over (the pipelines) it passes…at the end of the day there isn’t a first nations veto.”

He does concede, according to the Sun, that “governments do have an obligation to consult with nations…and must demonstrate they have ‘integrated the result of consultations in the project’s design.’”

The government, Enbridge and Mr. Derrick seem to be saying that the rank and file First Nations, through their leaders, do not have the right to use the international words for GO AWAY to Enbridge, because in the government reposes the law of the land, which, after a little pas de deux to entertain the masses, it can do as it pleases!

I hate to disappoint Messrs Derrick, Oliver, Bankes (sounds like a good name for a law firm) but many First Nations and their lawyers hold a contrary view and say that section 35 does in fact give them a veto.

Section 35 of the Constitution Act of 1982 provides constitutional protection to the aboriginal and treaty rights of aboriginal peoples in Canada. The rights Section 35 has been found to protect are fishing, logging, hunting, the right to aboriginal title and the right to enforcement of treaties. There remains a debate over whether the right to aboriginal self-government is included within section 35. Since 1995 the Government of Canada has had a policy recognizing the inherent right of self-government under section 35.

The leaders in the aboriginal community that I have spoken to make it clear that if rights in Section 35 grant them powers as indicated, clearly they must have full rights to protect them. They go further and say that their law prevails on all matters save where their title and rights might have been ceded – and they haven’t been, where the proposed Enbridge pipeline and tanker routes are concerned.

My question as a lawyer of long ago – if the government and Enbridge say they have the right to do as they please, why not just do it? If Mr. Bankes is right that there is no right of First Nations to stop them, why doesn’t Enbridge hold some hearings with the First Nations, say that they have consulted, then get on with it?

This isn’t a smart alec question at all, for if all Enbridge need do in Bankes’ opinion is integrate the results of consultation in the project’s design, a first year law student would be all that’s needed to gussy their design up to suit.

I close with a serious warning to the government and Enbridge: You are proceeding down a one-way path to disaster. Enbridge doesn’t care for the environment – look at their record. Look at what they did in 2010 in the Kalamazoo River! Oil spills are simply a cost of business which is, happily, a tax credit.

Aboriginal peoples say that they stand upon the Rule of Law, which they say includes their own law as guaranteed under Section 35 of the Constitution Act. They make the sensible argument that to have rights over fishing, logging, hunting, the right to aboriginal title and the right to enforce treaties, those words must mean that they can legislate to protect them – otherwise the words mean nothing.

Mr. Oliver – you’re being a damned fool and a dangerous one and when the violence comes, as it will, it will be on your head and that of your government. I’m not inciting violence – on the contrary, it is because I so abhor violence I plead with your government to come to its senses.

Don’t say you weren’t warned!


About Rafe Mair

Rafe Mair, LL.B, LL.D (Hon) a B.C. MLA 1975 to 1981, was Minister of Environment from late 1978 through 1979. In 1981 he left politics for Talk Radio becoming recognized as one of B.C.'s pre-eminent journalists. An avid fly fisherman, he took a special interest in Atlantic salmon farms and private power projects as environmental calamities and became a powerful voice in opposition to them. Rafe is the co-founder of The Common Sense Canadian and writes a regular blog at rafeonline.com.

14 thoughts on “Pipelines and Battle Lines Drawn by Harper Government

  1. It isn’t only First Nations that want to block the Enbridge fiasco, most of the non-First Nations folks I know want this pipeline stopped in its tracks. One reason is the potential for environmental devastation, another reason is why would we want to ship energy to China. China has a questionable Human Rights record and by supporting this pipeline, we would be an accessory to Human Right abuses happening in China. Why aren’t we working to ship the oil to Eastern Canada so they won’t have to import “unethical” Middle East oil?
    The Enbridge proposal has caused a huge rift between west coasters and oil for profit pro-tarsands believers. A rift I must add, that Harper has done absolutely nothing to try and prevent. In fact, Harpers stance is only widening that rift.

  2. The legal argument is not something that those who push these mega-projects should rely on too much. Canada, and particularly B.C. which has few historical treaties, has been in violation since confederation of the British Law they trumpet as the standard to which all other legal systems should be held. They may be right in that our legal (not justice) system does sometimes get it right. In fact it has been getting it right for some time now with regard to First Nations claims for rights and title. But the first principle that those who first occupy land are the rightful owners is embarrassing for our governments. First Nations peoples have been here fro several thousand years. By our own laws that makes them the owners unless they have ceded their territory through treaty or sale. Very few have done so.

  3. Two things:
    1. There will never be anything approaching democracy in Canada until we have a vote on the issues. This has been demonstrated time and again both federally and provincially.
    2. Enbridge strategy in getting this pipeline through will be to bride as many people as necessary to push it through. If that doesn’t work, they will; as demonstrated. by the above statement: “Look, this is a country that lives by the Rule of Law and I would hope that that would be the standard going forward…we can’t let unlawful people oppose lawful development.” Simply outlaw opposition to their policies.

    We need a binding vote on this issue.
    Rafe, you can’t have your cake and eat it too. Either we get a binding vote, or each issue will have to be fought on the ground just like the Northern Gateway will eventually be fought. Either we get a vote on the issues or many of them will become media spectacles until the people who live here will succumb to fatigue and economic disadvantage (the necessity to make a living working longer hours for lesser pay). These are not dying days of neoliberalism – these are the glory days of corrupt government.

  4. “Look, this is a country that lives by the Rule of Law and I would hope that that would be the standard going forward…we can’t let unlawful people oppose lawful development.”
    To which might truthfully respond,
    “Look, this is a government which is largely funded by corporations whose only real interest in the law is circumventing the expressed wishes of the electorate for their own gain. We can’t let unlawful governments oppose the lawful and democratic wishes of the electorate of BC. And I would hope that that would be the standard going forward…”

    What we really need is a vote on this issue, just like Zalm and company eventually pushed through a vote on the HST. Some countries even hold their legislators criminally responsible for destructive legislation they pushed through for private gain over public prosperity. These pipelines are a criminal endeavor which will eventually destroy a large swath of the BC coast, either north or south or both, and when that happens, no corporation in the world will take responsibility.

  5. As soon as the Enbridge/Derrick deal was exposed for what it is…the PM, Minister Oliver, and the CEO of Enbridge were making statements…telling any of us who oppose the pipeline that we who don’t respect the rule of law, and are mysteriously funded by foreign sources. How many of us should expect RCMP surveillance?
    I think you are right about this, RM. I’ll see you on the line.
    Next up – Site C!

  6. It is all very sinister in its machinations. Indeed, Enbridge is attempting to use the old and rather dated governmental view that if one First Nation is viewed in the public realm to receive millions of dollars for signing an agreement then the other First Nations will follow suit either due to greed or envy.

    This is the main reason that First Nation’s Peoples have all been starved continuously for generations financially. So that the Feds can continually manipulate them out of resources, land, and other territorial values associated with their lands.

    Now we have corporations practicing the same ideology with the federal governments blessing. These are not “faux pas” for Harper and his gang because this is the way they do business. It is not just the First Nations who are treated this way by this government; this is the way they do business with everyone.

    And Harper and his gang all the while smiling and claiming to have Christian values. If that is what defines Christian values then I will stick with my own set of enlightenment and integrity, which will never stoop to Harper’s’ low level.

  7. The Canadian government under Harper, is doing many things wrong – and in some cases, illegally. It appears that the government actions on the Wheat Board is illegal. The governments handling of the First Nation Emergency in northern Ontario is downright insulting and done in an dictatorial manner – guaranteed to really piss off a lot of people across the country.

    Seems that Harper is commiting one “faux pas” after another. Canada’s newest dictator is hell bent on destroying the democracy that thousands of people fought overseas and died for, trying to protect. Of course Harper wouldn’t know the first thing about principles and honour since he has none.

    Corporate greed – AKA Canada’s Conservative government, is about to commit suicide.



  8. Three recent events occurred: Peter Kent’s position at COP 17; fast-tracking of the Imperial Oil tar sands project; and Enbridge’s attempt to use the devide and conquer tactic with the Gitskan.
    Comments: In setting the conditions conducive to marketing and delivering tar sands bitumin I believe Minister Kent had marching orders to back off commitments made in the Kyoto Accord. This allows Asian countries to develop the capacity to refine tar sands crude without being tied to GHG targets and at the same time allows Canada to continue to extract and process the tar sands ready for refinement.
    This delaying tactic serves three objects: Gives breathing room to the government to clear the way for pipeline development and completion.
    Allows an increased supply to be developed by the oil companies so they can deliver a steady stream of refinery ready bitumin. The Harper government’s new policy of fast tracking the EAP process is desirable to ensure a steady supply. Approval has already been given to Imperial Oil’s new project.
    Enbridge is using an old government tactic to break First Nations opposition to the pipeline. Another conflict is building. No consultation/no trust.

  9. Rafe – Let’s dispense with the emotive rhetoric – you have been sharing facts for too many years to descend to “sludge” – evoking toxic sewage waste – when the facts are it is heavy oil, such as has been pumped in Long Beach California for 60 years – and condensate is not “gas”, it is similar to kerosene. As someone who has lived in the heart of BC’s energy patch for over 30 years, I can tell you Enbridge has crewed this up big time – BC has no Treaties, has salmon, and does NOT have a pipeline “culture” such as exists in Alberta. Roger Harris botched his attempts on Enbridge’s behalf, and Enbridge’s folks in Calgary missed one simple fact – if you are going to negotiate with First Nations – it MUST be backed by a Band Council Resolution, not signed by a Chief. I could go on and on – but all of them ought to have asked someone for advice who has worked with and dealt with BC First Nations in NE BC – where we all do “get” the culture. The powerful statements of emotion founded on ignorance are beneath you old friend. Contact me any time.

  10. I have little doubt the world will get behind the First Nations, the People of BC and all of Canada..
    Support may have to come in terms of Sanctions.. whatever it takes to keep the planet alive when so many are damned and determined to kill our Mother Earth for profit..

    Non violence all the way!

  11. Excellent thoughts and comments, Rafe. I was unable to make sense of the reports you cite; now I realize I was getting most from highly biased reports (the Vancouver Sun) and that the original sources (eg Bankes et al) just make no sense to begin with. I fully agree with you; there is only one thing to do: STOP! As much as I hate to say it, there is no sense talking with people like this any more.

  12. It will be very important to have video records of all Enbridge intrusions as well as of the RCMP confrontations as they show up with the usual judge’s injunctions.

    We should be prepared to have the video sent internationally in real time over the internet.

    Hopefully Damien and his crew will be on hand to show the truthful side of any confrontation as opposed to the poodle press reports of the Harper and Campbell/Clark governments.

    First Nations must know that they will not be alone in this last stand for democracy in our province and our country.

    Thanks to the Toronto G8/G20 military display of the unlawful lengths that Harper will go to to suppress our rights and freedoms, we will be prepared to respond to those transgressions.

    This confrontation will guarantee that Harper, Clark and their ilk will never be permitted to steal public office again.

  13. It does not have to come to violence. I have been reading books by Gene Sharp author of From Dictatorship To Democracy. His ideas have been used from Serbia to Egypt and have proven that nonviolent protest can be very effective. There are so many things that can be done it is difficult to know where to start.

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