Pipeline Politics and Indigenous Engagement: What did we learn from the 1970s?
Almost forty years later, the practical conclusions of Justice Thomas Berger’s 1977 Mackenzie Valley Pipeline Inquiry are increasingly relevant to current and heated discussions regarding the impact of pipeline developments on Indigenous communities. Berger’s emphasis on the importance of mitigating both social and environmental impacts of major developments in the North while working meaningfully with Indigenous communities continues to be top of mind for many Canadians and Indigenous peoples around the world today. So what lessons did we learn from the historic Berger Commission that add insight to current debates about the impacts of pipeline developments on Indigenous communities and our understanding of the role of the social license to operation (SLO)?
In Canada, there has been much debate over Enbridge's proposed Northern Gateway project. The proposed pipeline would transport approximately 525,000 barrels of petroleum per day west from Alberta’s oil sands development to BC’s northwest coast to be shipped to Asian and American markets. It would also transport imported condensate east from Kitimat to northern Alberta. Opponents to the plan are worried that the pipeline poses a significant risk to the environment and to the traditional economies of Aboriginal communities. Supporters of the development highlight the economic benefits of the project- increased jobs, tax revenue, and spin-off business development.
In January 2015, the former Stephen Harper Government approved the proposed major project. The National Energy Board noted in their ruling "that Canada and Canadians would be better off with the Northern Gateway Project than without it."1 Approval of the project was contingent on 209 conditions to be addressed by Enbridge, over half of these conditions were required to be addressed prior to construction of the pipeline.
In response the Harper Government's approval of Northern Gateway, several First Nation Communities filed a legal action claiming they were not meaningfully consulted as part of the approval process. And in June 2016, the Federal Court of Appeal ruled in its decision Gitxaala Nation v Her Majesty the Queen, that Canada had not meaningfully consulted with Indigenous people impacted by the proposed project. The Court noted that "....Canada offered only a brief, hurried and inadequate opportunity … to exchange and discuss information and to dialogue" with Indigenous peoples.2 Based on the ruling, Canada can now reconsider the concerns of Indigenous communities based on the submissions now on the public record or completely redo its Indigenous consultation process.
It is unclear what the next steps of Northern Gateway will be. However, there continues to be mounting opposition against parallel pipeline projects with potential impacts on Indigenous communities. Some Gitxsan in northern BC, for example, continue to be concerned about the impacts of TransCanada's proposed LNG pipeline on their Indigenous title and rights; tensions continue to mount related to the Tsleil-Waututh Nation's opposition to Kinder Morgan's Trans Mountain pipeline expansion project in Vancouver; and the largest gathering of Indigenous Nations in current American history has rallied in opposition to the Dakota Access oil pipeline in the United States. All this opposition suggests to me that jurisdictions are continuing to fail in their meaningful consultations with Indigenous communities.
During the 1970s Governments in Canada unveiled several new plans for major developments in the North. These included the construction of an extensive pipeline to ship natural gas from the Beaufort Sea through the Mackenzie Valley in the Northwest Territories to southern Canadian and American markets; as well as the construction of Canada’s largest hydroelectric generating station in James Bay, Quebec. In response to the proposed pipeline, the Dene Nation requested recognition of their Aboriginal title to the lands subject to development. Similarly, at the other end of the country, the James Bay Cree and Inuit of northern Quebec expressed concerns about the impact of the development of a major hydroelectric project in their territories.
In 1973, the Federal government established its new comprehensive land claims policy.3 This new policy provided a process to address Indigenous concerns related to proposed development. As a result, in 1975 Cree, Inuit and Naskapi in northern Quebec successfully negotiated The James Bay and Northern Quebec Agreement (JBNQA). This was Canada’s first modern-day treaty, and it set the bar high for the resolution of similar claims in the North decades later. The JBNQA provided a sophisticated framework to mitigate the impacts of the hydroelectric project on local communities while enhancing its positive benefits. It included increased financial resources for Cree, Inuit and Naskapi communities as well as access to job skills development and participation in the wage economy. Unique to the agreement was support for the traditional economy through the establishment of the Cree Trapper’s Association. The agreement also provided certainty through the resolution of land claims issues that in turn has helped to build investor confidence in the region.4
In response to Dene concerns regarding the proposed major development in their homeland, the Federal Government initiated the Mackenzie Valley Pipeline Inquiry in 1975. They appointed Mr. Justice Thomas Berger to conduct a detailed assessment of the terms and conditions, and measure the potential impacts associated with the construction of the pipeline in the Mackenzie Valley. The commission conducted extensive consultations with more than three hundred experts on northern conditions, the northern environment, and northern peoples. This was the first major Indigenous engagement process in Canada.
In 1977, after two years of study, Justice Berger submitted an exhaustive two-volume report to the Department of Indian Affairs and Northern Development (DIAND). In the report he recommended the postponement of the major development for ten years. I believe that the biggest challenge to pipeline developments today is the same challenge Justice Berger highlighted almost forty years ago. In a letter to then Minster of Indian Affairs and Northern Development Warren Allmand, Justice Berger concluded:
There should be no pipeline across the Northern Yukon. It would entail irreparable environmental losses of national and international importance. And a Mackenzie Valley pipeline should be postponed for ten years. If it were built now, it would bring limited economic benefits, its social impact would be devastating and it would frustrate the goals of native claims. Postponement will allow for sufficient time for Native claims to be settled, and for new programs and new institutions to be established. This does not mean that we must renounce our northern gas and oil. But it does mean that we must allow for sufficient time for an orderly, not hasty, program of exploration . . . .5
The Berger Commission cautioned all Canadians in the 1970s that industrial development in the North should be done in a sustainable and responsible manner, with a view to long-term net benefits for all stakeholders. Berger also highlighted that major projects in the North significantly affect the complex historic and ongoing relationships between Aboriginal peoples and the land.
After almost forty years, this has not changed. Many Northerners continue to express concern regarding the impact of the proposed Northern Gateway Pipeline on the environment. Consultation processes outside the context of self-government and the settlement of comprehensive land claims still do not carry the long-term benefits to Aboriginal communities or the level of certainty to the private sector noted by Justice Berger. This is especially true in BC, where there are more than 50 separate comprehensive land claims currently being negotiated across the province. While the Crown's duty to consult policies are an important safeguard for all stakeholders, they should not be considered an alternative to the meaningful settlement of these outstanding comprehensive land claims. This should be the first step to developing sustainable economic options and major resource projects in the region. Forty later, it’s worthwhile to reflect on Justice Berger’s final comments: “[w]ith time it may, after all, be possible to reconcile the urgent claims of northern native people with the future requirements of all Canadians for gas and oil.”6
Ultimately, the challenge continues to be figuring out how much time it really takes to do things right. While government and industry continue to push an economic rationale for the proposed pipeline developments, many Indigenous peoples and communities continue to stress that they do not work at industry pace—and will not be pressured to do so. If it is in our collective interest to proceed with the proposed pipelines, then it is also in our collective interest to ensure that they are developed carefully, with a flexible, long-term timeline and urgent attention to first addressing and settling the century-old concerns of Indigenous peoples.
2.] Gitxaala Nation v Her Majesty the Queen [2016 FCA 187]
3. “Comprehensive Land Claims Agreements are negotiated in areas of the country where Aboriginal rights and title have not been addressed by treaty or through other legal means.” See DIAND’s Comprehensive Claims for more information, http://www.ainc-inac.gc.ca/al/ldc/ccl/index-eng.asp.
4. James Bay and Northern Quebec Agreement, http://www.gcc.ca/pdf/LEG000000006.pdf.
5. Berger, T. (1977). Northern Frontier Northern Homeland: The Report of the Mackenzie Valley Pipeline Inquiry: Volume One. Ottawa, ON: Government of Canada, xxvii.
6. Berger, T. (1977). Northern Frontier Northern Homeland: The Report of the Mackenzie Valley Pipeline Inquiry: Volume One. Ottawa, ON: Government of Canada, xxvii.
photo credits: Overpass Light Brigade DSC00303 via photopin (license); Proposed Northern Gateway Map, http://boereport.com/2016/01/13/b-c-supreme-court-hands-another-setback-to-northern-gateway-pipeline/; Berger Inquiry, http://www.cbc.ca/news2/background/aboriginals/briefhistory.html