First Nations, Constitution are Canadians' best defence

Rafe: First Nations, Constitution are Canadians’ best defence

First Nations, Constitution are Canadians' best defence
Chiefs of the Tsimshian First Nation speak out against Enrbidge at a 2012 Prince Rupert rally

Big money now rules the world. The rich get richer and the poor get poorer and the middle class gets squeezed. No government in the world is doing anything about this – least of all the Conservative government in Canada.

The only people fighting this, and for their own reasons, are First Nations. We all do things for our own selfish reasons so that was not meant to be a criticism, but simply a statement of fact.

It is time we looked at the reality of the Roger Williams case in light of the fight against big business and see how it plays out. The best places to look are at the Northern Gateway and Kinder Morgan pipelines.

‘Compelling and Substantive’

In light of the Williams case, they both face the same problem. Each of them must now consult with the appropriate First Nations. They may well consider that since they have been turned down they have already consulted with them to but my advice under the Williams case is to do it again and get turned down again.

They will then have to convince the crown, in this case the federal government, that their project is “compelling and a substantive” and consistent with the crown’s fiduciary obligation to aboriginal peoples.

I, frankly, think that it would be enormously difficult for a government to make that decision under any circumstances I can imagine. If nothing else, the political ramifications across Canada, with every First Nation, would be enormous. For a First Nation anywhere in the country to learn that one of their brethren, in trying to protect the environment of its land, was forcibly frustrated by the government would be a huge blow and would spread throughout the aboriginal community, and in my opinion, rightfully so.

Pipeline approvals will trigger lawsuits

Let us suppose for sake of argument that the crown, whether provincial or federal, does make such a decision. There would be, immediately, a lawsuit. Going on the past, a lawsuit would take five years , minimum, to resolve. Without any doubt it would go to the Supreme Court of Canada and from the company’s point of view, they would realize that the aboriginals have the longest winning streak in history in that court.

The main point is that no matter what, Northern Gateway and Kinder Morgan have got a very long time to wait before they get the final decision in their favour, if they ever do.

Let us suppose they did get that final and for them favourable decision. This would not end the matter because in my view the public of British Columbia would still raise hell and there would be civil disobedience.

In short, I think that the Williams case spells paid to the two pipelines in question.

Exclusive use

There is another interesting feature arising out of the Williams case. A reader of my column in The Tyee points out that the Chief Justice talked about “exclusive use” of the land in question. What if two nations shared land by way of an understanding, tacit or otherwise? Would they not be able to claim that they should to share ownership of that land now because the two of them had had exclusive use?

I suppose the real point I’m making is that there are plenty of legal questions left and I can only wish that I had just graduated from Law School aged 24 instead of having done so in 1956!

First Nations stand best chance of protecting BC

As I have said elsewhere, I by no means think that the Williams case adversely affects development in British Columbia. It changes the rules and it changes who gets the money but First Nations want development too. They are, I might happily add, much more concerned about environmental matters than large international developers or governments. They are concerned about values like caribou, fish, and trees. They, in short, care about the sort of things that many other British Columbians are also concerned about but can’t get their governments to give a damn about.

First Nations know, as we all should know, that “dilbit”, which is the oil that would be transported by these pipelines, is lethal stuff. One need only look at the Kalamazoo River to see what happens when Bitumen, or dilbit, spills. As long as human beings are involved, we will have spills. Many, if not most, of these spills will be in virtually inaccessible places. We know from Kalamazoo that even if they spill is accessed, there is very little the company can do about it.

Living so close to the land and the oceans as First Nations do, they are keenly aware of these facts. Large international companies, and their client governments, don’t give a damn about these things – never have and never will.

The bottom line is that in the great war against marauding capital there is only one “Peter at the dike” and that’s our aboriginal community, as supported by the Canadian Constitution.



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

5 thoughts on “Rafe: First Nations, Constitution are Canadians’ best defence

  1. Good points all around. And while popular protest against and resistance to marauding capital and its colluding friends in government may be unavoidable, viable legal and Constitutional strategies cannot be ignored. Clarification by Rafe and others always appreciated. It is also important to note that First Nations in Canada and the US, along with indigenous peoples the world over, are typically on the front lines of the war that aggressive capital and development are waging against a healthy environment and sustainable ecology. By most media standards, a woefully under-reported if not completely ignored story that should be a vital part of what people need to know regarding the challenges we all face. Kudos to Rafe and to the Common Sense Canadian for the generous inclusion of First Nations news in their ongoing coverage of these issues.

  2. Not your best article, Raif. This most recent decision by the Supreme Court of Canada could be a game changer but some of us thought that about Delgamuux and the Phillistines have managed to ignore most of the implications of that. Look at the numbers of environmentalists who have been jailed for blockading what ought to have been illegal trespass. And how many CEO’s have been put in the pokey? 928,000 cubic meters of young trees in the Morice Supply area near Houston, B.C. were “overcut” and there wasn’t even a fine, let alone a court case about it. We have to do more than pay lip service, we can’t leave it up to First Nations . It’s time for those of us who cherish this province to step up and start to pay our rent, stop being squatters and actively support those who are putting their futures on the line. Obviously , we aren’t “going back where we came from”, we’re here, probably here to stay. So let’s take responsibility for our presence and get up off our backsides. If you can do nothing else, SEND MONEY to help pay legal fees.
    See you on the blockade! I think I’ll bring sandwiches, we may be there quite some time.

  3. It is the responsibility of the media to help educate the public so they can see through the lies and propaganda spread by the big oil companies and the Canadian government. It is hard for people who are not informed to say no to jobs and economic wealth. I know many people that I consider to be intelligent who still believe that climate change is not affected by these projects and that environmental damage is a cost of doing business and is unavoidable if we want the economy to continue to function. Thank you Rafe Mair.

  4. Thanks, Rafe! Very well stated. Rather ironic that us “we” are entirely dependent on our First Nations to stand between us and the corrupt fascist corporate owned #CPC regime to save our beautiful country. Finally! Leadership that we can all stand in SOLIDARITY with! I am so grateful to them and to the SCoC. We just have to hang on until we #HeaveSteve in 2015. It will be a monumental task to undo all the damage and harm @pmharper has bestowed upon Canada and her people. No matter which opposition party wins the election… they better return ownership of this country to people and NOT THE CORPORATIONS or we’ll heave them too! If Canada isn’t returned to it’s people nothing will stop the MAPLE SPRING!

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