OHSWEKEN — Six Nations Elected Council released a statement Monday, saying effective September 12, 2016 all current and future consultations with Enbridge have ceased.
According to SNEC, Six Nations Consultation and Accommodation Process (CAP) team were in discussions with Enbridge regarding how the company could accommodate the community for their proposed Line 10 replacement project, which is seeking to replace a 35 kilometre section of the pipeline that currently crosses over Haudenosaunee territory.
Six Nations Lands and Resources Director Lonny Bomberry said the CAP team got involved in discussions with Enbridge as a result of Canada’s ‘duty to consult’ process between proponents — the corporation seeking to make a development, in this case Enbridge — and First Nations communities, in this case Six Nations.
Bomberry said Enbridge is required by the federal government to contact and enter discussions with Six Nations on any projects along the Haldimand Tract and 1701 Treaty territories, also known as the Nanfan Treaty or Dish with One Spoon area.
“We didn’t really start a formal process of becoming involved in anything to any great degree. But with the Line 10 replacement project we became more involved,” said Bomberry.
Bomberry said Six Nations applied for intervenor status with the National Energy Board (NEB) when Enbridge submitted their application for the Line 10 replacement project.
“We discussed with Enbridge that the Line 10 replacement is an impingement on our treaty rights; that we have a right to be accommodated if the line is going to be refurbished and so the issue was how are we gong to be compensated or mitigated,” said Bomberry.
Bomberry said the CAP team and Enbridge “couldn’t reach a satisfactory resolution on that”, and thus the statement was issued declaring as of September 12 all current and future engagements with Enbridge and Six Nations Elected Council have ceased.
Crown has ‘duty to consult’
Bomberry explained that because Enbridge has a ‘duty to consult’ that it is possible Six Nations would have to communicate with them again, however when it comes to the Line 10 replacement project there will be no future discussions.
Instead, he says, Six Nations will use it’s platform at the NEB to to speak on behalf the community and raise concerns about the project there.
“It’s a process thats there that you have to use,” said Bomberry. “The bigger issue is who has the duty to consult and accomodate.”
Bomberry said that a number of historic court cases indicate it is actually the duty of the Crown to consult with First Nations and not the proponent; in this case, Enbridge.
“That is the Crown’s duty,” said Bomberry. “We all know that because of all the court cases. Is the NEB the proper body to do that? It would seem at first glance, no it is not. And that is what the Chippewas of the Thames court case is all about.”
Chippewas of the Thames (COT) is a First Nations community near London, Ontario. They are seeking the Supreme Court of Canada to appeal a decision upheld by the National Energy Board granting Enbridge authorization to reverse the flow of Line 9, permitting crude oil and bitumen to flow across their territory.
COT says the duty to consult with First Nations people and accommodate their interests is a constitutional duty invoking honour of the Crown and not the NEB, “which requires that the Crown act with good faith to provide meaningful consultation appropriate to the circumstances and must be upheld.”
This case, says Bomberry, would have a great impact on the direction of all consultations between First Nations and proponents in the near future.
“That’s going to provide a lot of guidance to First Nations on who has the duty to consult and maybe even what that duty consists of,” said Bomberry. “Because it really isn’t the duty of the proponents to consult. It’s always been clear from the case law that it is the Crown’s duty. And we have had no discussions with the Crown on either the Line 9 reversal or the Line 10 replacement.”
Bomberry said the Supreme Court decision on the COT case will have a lot of effect on how Six Nations engages with Enbridge and with the Crown in the future.
Six Nations signs pipeline resistance treaty
Pipeline development through indigenous territory has been a hot point politically across North America this summer. Opposition action has been taken both in the United States and Canada to halt construction of new pipelines, such as the Keystone XL, Northern Gateway, Energy East and more recently the Dakota Access Pipeline.
Earlier this week 85 indigenous nations across Canada and the United States signed a Treaty Alliance Against Expansion of the Tar Sands at simultaneous ceremonies on Musqueam (Vancouver) and Mohawk (Montreal) territories declaring resistance against the pipeline projects of TransCanada, Kinder Morgan and Enbridge.
It reads in part, “our Nations hereby join together under the present treaty to officially prohibit and to agree to collectively challenge and resist the use of our respective territories and coasts for the expansion of the production of Tar Sands, including for the transport of such expanded production, whether by pipeline, rail or tanker.”
Among the 85 signatories to the historic treaty are the Mohawks of Kahnawake, Mohawks of Kanesatake and Six Nations of the Grand River, along with the Standing Rock Sioux Tribe of North Dakota.
Bomberry says Six Nations action to halt discussions with Enbridge is a part of that greater resistance throughout indigenous North America.
“I think from the Council’s perspective it’s generally fair to say that First Nations all across Canada and in the United States are opposed to pipelines. We see that with Standing Rock – and Elected Council is in support of the Standing Rock Sioux in their attempts to stop the construction of that pipeline. Whether it’s Energy East pipeline or Enbridge lines it’s generally fair to say, and we know what’s happening out on the west coast with Northern Gateway, people are generally opposed to that too. It’s not only happening here but it happening all across Canada,” said Bomberry. “There is that general resolve that all First Nations are opposed to pipelines because it is impinging upon their treaty rights and also the potential for environmental disasters are always there as well.”