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.
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.