BC Court of Appeal Ruling Means
British Columbians and Indigenous Nations
Remain Vulnerable to Oil Spills
Picket in Terrace, April 18, 2019, outside Senate hearings on Bill
C-48, the Oil Tanker Moratorium Act,
which
would
ban
tankers
carrying
more
than
12,500
metric
tonnes
of
oil
from
stopping
or
unloading
along
BC’s
northern
coast.
A BC Court of Appeal decision released on May 24 rules
that
proposed amendments to BC's Environmental Management Act
(EMA) are outside provincial jurisdiction. This "leaves British
Columbians vulnerable to health, safety and environmental risks
associated with increased transportation of heavy oil through the
province," a press release issued by West Coast Environmental Law
says.
 "BC's proposed amendments
included a permitting regime
for
companies that transport hazardous substances, such as diluted
bitumen, through the province," the press release says.
"Addressing the environmental challenges of our time
will
require effective action by all jurisdictions: federal,
provincial and Indigenous," said Jessica Clogg, Executive
Director and Senior Counsel. "With this judgment, the BC Court of
Appeal has turned back the clock on cooperative federalism,
putting our health, safety and environment at risk."
Staff Lawyer Eugene Kung points out that the decision is
a
loss because "Oil spills don't respect borders, and neither does
climate change." He said, "It is also a slap in the face to Indigenous
governments whose jurisdiction has been ignored."
The BC government has announced that it plans to appeal
the
ruling to the Supreme Court of Canada. If the Supreme Court of
Canada accepts the appeal, it will rule on the constitutionality
of BC's proposed law which, arguably, does not resolve the
substantive issue which is the justice of the cause for which the
people of BC and the Indigenous peoples are fighting.
The Haida and Heiltsuk Nations decried the decision of
the BC
Court of Appeal saying in a press release that it "reduces the
power of provinces to protect lands and waters from
inter-provincial infrastructural projects, and fails to recognize
the role of Indigenous peoples in protecting the environment. The
decision will increase the risk of oil spills and environmental
damage associated with the proposed Trans Mountain pipeline
expansion."
 "Today's ruling is
disappointing as it reveals the lack
of
understanding and/or unwillingness of the courts to properly
recognize Indigenous jurisdiction over our territories. The
failure to recognize our arguments in the ruling is a missed
opportunity for the courts to demonstrate an act of genuine
reconciliation," says Nang Kaadlljuus President of the Haida
Nation Gaagwiis Jason Alsop.
"The Court of Appeal's ruling is offensive and
irresponsible.
It is unacceptable that despite being granted interested party
status, the court failed to even acknowledge ours or any other
Indigenous government's arguments in its decision. They invited
us into the room, but they completely ignored us," adds Marilyn
Slett, elected Chief Councillor of the Heiltsuk Nation. "Despite
over 30 years of litigation that has reinforced constitutional
recognition of the rights of Indigenous peoples, the Court took
an overly narrow view. In this era of reconciliation and Crown
commitments to implement the United Nations Declaration on the
Rights of Indigenous Peoples, the decision today is a big step
backwards," she said.
The press release by the Heiltsuk and Haida
said they
were among four Indigenous interested persons that presented
arguments to support BC in protecting the environment. They made
arguments related to their inherent Indigenous title and rights
and addressed gaps in the existing spill response framework that
BC's proposed legislation would address. "However, today's
reasoning makes no mention of Indigenous arguments, instead
referring solely to federal and provincial jurisdiction. Ignoring
Indigenous jurisdiction reflects continued unwillingness to take
practical steps towards reconciliation and recognition of title
and rights in the real world," the press release pointed
out.
Gaagwiis reminded the public that "Indigenous
governments are
not equivalent in power to municipalities, that courts can choose
to hear or ignore when convenient. We speak as Nations. Our laws
and jurisdictions are the first order of government, as they flow
from the natural laws of Earth. We have a responsibility to
uphold these laws and protect our territories for future
generations of our people and Canadians."
The press release explains that in the court, speaking
in
support of BC's proposed legislation, the Heiltsuk nation
presented its experience with the Nathan E. Stewart oil spill
which "brought to light gaps in federal spill response that have
negatively impacted the remote community's recovery from the 2016
spill. These gaps were not even addressed by the court and, as a
result of today's decision, they remain in place:"
Protest by Heiltsuk Nation during visit by Transport Minister
Marc Garneau in November 2016, shortly after the Nathan
E.
Stewart
tug ran aground on their territory.
The gaps include failure to compensate for Indigenous
losses. "In the event of an oil spill there is currently no
compensation
available for many Indigenous losses, including communal losses.
This is because compensation under Canada's Ship-Source Oil
Pollution Fund and Marine Liability Act's definition of
'pollution damage' focuses exclusively on 'loss of profit,'
ignoring the devastating impacts spills may have on the food,
social, and ceremonial losses."
There is also no requirement for a robust Environmental
Impact
Assessment, the Heiltsuk pointed out. "Both provincial and
federal legislation do not presently have any mandatory
requirements for an environmental impact assessment to be
conducted, or provide capacity funding for Indigenous governments
to conduct one themselves. An environmental impact assessment is
critical to understanding both the short and long-term effects of
an oil spill on the natural environment."
"While both these gaps exist, Indigenous nations will
continue
to be disproportionately impacted by oil spills," the press
release explains.
For a copy of the decision, click
here. For a PDF of the press release, click
here.
For
Heiltsuk's earlier
release on the reference case, click
here.
This article was published in
Volume 49 Number
20 - June 1, 2019
Article Link:
BC
Court of Appeal Ruling Means British Columbians and Indigenous Nations
Remain Vulnerable to Oil Spills
Website: www.cpcml.ca
Email: editor@cpcml.ca
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