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Chippewas of the Thames First Nation Defend Indigenous Treaty Rights at Supreme Court

Chippewas of the Thames First Nation opposes Enbridge Pipelines Ltd.’s Line 9 pipeline before the National Energy Board for lack of consultation.
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The Chippewas of the Thames First Nation finally got their day in Supreme Court to stand for indigenous treaty rights on November 30.

Enbridge Limited Ltd.'s Line 9 crude pipeline first transported oil from Sarnia, Ontario, to Montreal, cutting through traditional Chippewa territory, in 1976. The Chippewas didn't consent to its construction back then, Myeengun Henry, band councillor for the Chippewas of the Thames, told The Star. But that's not what this case is about.

The Ontario First Nation contends the Canadian government violated section 35 of the constitution by deferring the duty to consult the Anishinaabe community on changes to the pipeline to the National Energy Board (NEB). The Chippewas participated in a public hearing process led by the NEB, which was not a substitute for full, Crown consultation, argued David Nahwegahbow, lawyer for the Chippewas.

“The honor of the Crown cannot be delegated,” Nahwegahbow said.

The aging pipeline’s flow of crude has been reversed twice: in 1999, and again in December 2015. The first switch, a response to market conditions, pumped imported crude westward. The latter was instigated following the Federal Court of Appeal’s 2–1 split decision and dismissal of the Chippewas’ case in November 2015. The case also argued that the Crown did not perform adequate consultation before the NEB approved the reversal and increase in crude capacity from 240,000 barrels to 300,000 barrels per day. Now running east to west, the pipeline transports crude from Alberta's oil sands to Montreal refineries. From east coast ports, crude oil is shipped worldwide, reported CBC News.

The Supreme Court of Canada granted the Chippewas of the Thames leave to appeal the court's dismissal on March 10, 2016, and the case was finally heard by nine justices at the highest court on November 30. A decision is anticipated in four to six months.

“The case has huge implications for First Nations across the country,” said Chippewa Chief Leslee White-Eye. “The corporations running the pipeline shouldn't be the ones fulfilling the constitutional obligations.”

The Chippewas, backed by environmental groups, warn that while using an existing pipeline may reduce costs, using old pipelines increases spill risks and could have devastating consequences for rivers, lakes and surrounding communities along the route.

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“The disastrous pipeline spills in Kalamazoo, Michigan, and Mayflower, Arkansas, highlight the dangers of shipping tar sands crude and using an older pipeline not originally built for carrying oil,” said Andrea Harden-Donahue, energy campaigner with the Council of Canadians, said in a statement.

Representatives of Thames First Nation have consistently said they’re not against all development, but they’re strongly against neglect of their First Nation rights.

“We just want to be able to say when and where and how,” Okalik Eegeesiak, president of the Inuit Circumpolar Council-Canada, told the Nunatsiaq News. “We hope the Supreme Court hears this cause and we look forward to the outcome.”

Also on November 30, Supreme Court justices heard arguments from Clyde River, a Nunavut hamlet across the Baffin Bay from Greenland, concerning lack of Crown consultation before the National Energy Board (NEB) granted approval for a five-year license to allow seismic testing for oil and gas deposits in their Arctic waters, where they hunt and fish. The sonar blasts threaten the life of marine mammals, and thus Inuit culture and livelihood.

At the heart of the matter in both cases is the Crown’s duty to consult.

“As interveners, the Chiefs of Ontario stand in support with both the Chippewas of the Thames and Clyde River,” Regional Chief Isadore Day told Anishinabek News. “If a nation-to-nation relationship truly existed and the duty to consult was fully honored, strong communities like Chippewas of the Thames and Clyde River wouldn’t have to be here to fight to affirm their inherent rights as partners on this land.”

Greenpeace Canada is lending tremendous support to the fight.

“We are hopeful a ruling could mean more than just reversing the decisions for these projects. We are hoping it could impact the future and how indigenous communities are consulted,” said Farrah Khan of Greenpeace Canada, according to The London Free Press. “Protecting the environment is important. Human rights are more important. And protecting the human rights of indigenous people should be a priority for all of us.”