The Line 9 project was initiated quietly and rather unremarkably with a plan, according to Enbridge, to simply reverse the direction of the 40 year old pipeline’s flow from west to east so it would transport oil from Sarnia to Montreal.
But concern quickly arose that oil products being shipped west to east were likely going to be changed from light crude to diluted bitumen from the Alberta tar sands and fracked oil from North Dakota.
Eventually, Enbridge was forced to confirm that this was to be the case for the whole of Line 9, and the prospect of tar sands bitumen being pumped through an aging pipeline across many rivers and through many communities spurred widespread opposition.
Along with concerns over the substances Line 9 would carry, opposition grew around the fact that the reversal project would impact 18 Indigenous communities — communities which were not consulted in the process of developing and approving this project.
Despite criticism over lack of consultation and environmental impact being voiced by groups ranging from band councils to residents’ groups to the Ontario Ministry of Energy — in March 2014 the NEB approved the Line 9 project.
Chippewas Of The Thames First Nation launched their appeal of the NEB’s decision shortly thereafter. While affirming their opposition to Line 9 through the courts, their resistance is grounded in traditional knowledge and responsibilities, as band councillor Myeengun Henry explains, “…it is our obligation to protect the land, the environment… our spiritual connection is strong in our community and [we] are strongly opposing this project.”
The reasonable probability of significant impact on an Indigenous community should trigger a full consultation process, and since Enbridge and the federal government shirked this responsibility, COTTFN are taking the matter to court.
The rights they are asserting are protected in treaties, the Canadian Constitution, and the United Nations Declaration on the Rights of Indigenous Peoples, which emphasizes the need for free, prior, and informed consent.
Section 35 of the Constitution affirms the treaty rights of Indigenous peoples, which includes consultation regarding projects that would impact upon these rights.
As COTTFN filed with the NEB, “Line 9 is located within [COTTFN’s] traditional territory and treaty lands crossing underneath the Thames River, a watershed that [their] members and their ancestors have inhabited and harvested resources from since time immemorial.”
Enbridge CEO Al Monaco said, “through this [Line 9] project and all other projects,” the corporation “make[s] it a point of making sure that we’re consulting and engaging communities all along the right of way, particularly for First Nations.”
However, their track record demonstrates otherwise. Notification is far from equal to consultation, and Enbridge has come under fire in the past for neglecting to consult.
In 2013, Amnesty International released statement regarding Enbridge’s Northern Gateway project explaining Enbridge “ignored crucial protections for Indigenous rights set out in both the Canadian Constitution and international human rights law.” The statement continued “if consultation is based on the premise that the project will proceed regardless, it will not meet the standard of human rights protection required by [law].”
Amnesty’s statement added that “The Supreme Court of Canada have repeatedly stated that there is a mandatory minimum legal duty for governments to carry out meaningful, good faith consultations with Indigenous peoples prior to any decision with the potential to affect their rights” (emphasis added).
Even though these principles have been tested repeatedly at the Supreme Court, they are being rehearsed once again over another industrial project. “Time and time we have to fight, but it is a different day and age now with our understanding. We keep referring back to Section 35 of the Constitution, which is a constitutional responsibility for them to talk to us,” Henry reflects. “Our case is really against the government of Canada for their lack of responsibility.”
The environmental implications are equally concerning, given Line 9’s substantial potential to devastate the land and rivers it crosses. As Henry explains, “The land here in southern Ontario is our spiritual responsibility. The Thames River is one of our major factors, we still hunt, we still fish, we still gather medicines in that region,” adding that other First Nations in the vicinity, even though not directly traversed by Line 9, would be affected by a spill.
Indeed, the prospects for the ecosystems crossed by Line 9 have been cast as dire. Pipeline safety expert Richard Kuprewicz has predicted an over 90% chance of failure in the first 5 years of operation, a statement of risk he does not make lightly or often. And a failure of a line carrying dilbit is demonstrably more devastating than of conventional crude. In short time, bitumen sinks in water, while the condensate used to dilute it evaporates, leaving a toxic cloud.
Immediately, when the condensate—a slurry of chemicals concealed as a proprietary secret used to dilute the bitumen—evaporates, it poses a health risk to anyone in the vicinity.
Line 9 has already suffered at least 35 significant spills in its operational history. The switch to dilbit does not bode well for keeping that number where it is.
Nonetheless, COTTFN remains optimistic. As Henry considers, “What we are seeing is they know the importance of consultation now, and they are a bit worried. That is why we have this case and we have a good chance of winning it.”
In conclusion, Henry states, “When we win this case, it’s going to challenge everybody else who’s trying to do things that will hurt the environment here in our region. We are going to be protectors of our traditional territory and we are going to make the corporations understand that, that they have duties and responsibilities along with the government of Canada.”
Statement pdf: link
Rachel Avery and Dan Kellar (@dankellar) were Intervenors at the Line 9 Hearings and organise in Waterloo Region on the issue – noline9wr.ca