Federal Court of Appeal Decision on Trans Mountain Pipeline Expansion Is Illegal and Unjust
- Philip Fernandez -
Chief Don Tom, Vice-President of UBCIC speaks at February 4, 2020,
Vancouver press conference following the dismissal of the court
challenge against approval of the Trans Mountain pipeline expansion
project. (UBCIC)
The Federal Court of Appeal ruling February 4,
which dismissed the court challenge filed by the Coldwater Indian Band,
Squamish Nation, Tsleil-Waututh Nation, and a coalition of
seven Stó:l villages to the approval of the Trans Mountain
pipeline expansion project (TMX), is illegal and unjust.
Put simply, the Crown has no legal jurisdiction
over the
Indigenous peoples in their unceded territory. These are sovereign
Indigenous nations and peoples whose status is politically equal to
Canada, and is recognized as such in international law, for example, in
the United Nations Declaration on the Rights of Indigenous Peoples.
The Federal Court of Appeal ruling is
unjust because the court restricted the case of the Indigenous
plaintiffs -- who originally numbered twelve nations and groups -- to
just six and restricted the legal arguments to address only whether the
"Government of Canada had adequately fulfilled its duty to consult with
Indigenous peoples." This means, for example, all the meticulous work
the Tsleil-Waututh Nation did in preparing to demonstrate in court the
damage the pipeline would cause to the natural and social environment,
was not considered.
This is the second time that Indigenous peoples
from British Columbia have taken their case to stop the TMX to the
Federal Court of Appeal. The first time, in May 2018, the court ruled
in their favour, quashing approval of the project and requiring the
federal government do a more thorough job of consulting the 125
Indigenous groups and bands along the proposed route of the project.
In their unanimous 2020 ruling the three judges
stated: "This was anything but a rubber-stamping exercise. The end
result was not a ratification of the earlier approval, but an approval
with amended conditions flowing directly from renewed consultation."
They deemed it "All very much consistent with the concepts of
reconciliation and the honour of the Crown." The court further ruled,
"The case law is clear that although Indigenous peoples can assert
their uncompromising opposition to a project, they cannot tactically
use the consultation process as a means to try and veto it." In other
words, the court clearly does not recognize the sovereign jurisdiction
of the Indigenous peoples on their unceded lands.
While the Crown -- represented by the Canadian
colonial state, its governments, courts, police and military -- can try
to impose their agenda through force, as in the case of the TMX or
Coastal GasLink pipeline, and the courts can uphold the agenda of the
gas and oil multinationals "legally," it still does not make it right
or just or legal within the framework of Indigenous or international
law. The political high ground here is held by the Indigenous peoples
who are standing up for their rights and sovereignty, fighting for the
well-being of all Canadians and demanding that Canada recognize their
right to self-determination.
Speaking on Bloomberg Business News following the
ruling of the Federal Court of Appeal, Kukpi7 Judy Wilson,
Secretary-Treasurer of the Union of BC Indian Chiefs stated that not
only was the "consultation" the Liberal government did the second time
around flawed and "dismissive," but the "worrisome thing about this
case was that [the Federal Court of Appeal] was dismissive of
Indigenous peoples' rights, Indigenous peoples' knowledge and also the
Indigenous peoples' laws."
Kukpi7 Wilson pointed out in the interview that
the system that Canada imposed on the Indigenous peoples through the
Indian Act cannot be the basis of resolving conflicts
between Indigenous peoples and Canada. She noted that Indigenous
peoples are increasingly affirming their sovereignty and rights as they
turn to their own Indigenous laws and systems that have served them
well through time. For example, she noted that Indigenous peoples
consider they have a sacred duty as stewards of the lands and waters to
ensure the well-being of the natural and social environment for future
generations.
Following the decision of the Federal Court of
Appeal, the Indigenous plaintiffs stated that they will appeal the
decision to the Supreme Court while also stepping up the resistance of
the various Indigenous peoples and the Canadian people to take the
political fight further in tandem with the legal battle.
This article was published in
Volume 50 Number 4 - February 15, 2020
Article Link:
Federal Court of Appeal Decision on Trans Mountain Pipeline Expansion Is Illegal and Unjust - Philip Fernandez
Website: www.cpcml.ca
Email: editor@cpcml.ca
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