Three Political Paths to Stop Northern Gateway

Federal approval handed huge power to British Columbians. Our job is to get organized.

By Kai Nagata, Today, TheTyee.ca

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Several friends told me this week the Northern Gateway pipeline “finally feels real.” Even people who were cavalier about the inevitability of federal approval described feeling unexpectedly emotional. A few I didn’t even realize had the issue on their radar are suddenly speaking eloquently and passionately — not so much about the details of the proposal, but about the way Ottawa’s decision was carried out.

Enbridge CEO Al Monaco says it will be at least “12 to 15 months” before they’ll be ready to build. With that window in mind, the common question for those who want to stop it is: “How?”

Some are well-positioned to challenge this decision in the courts — First Nations governments best of all. The Crown committed a costly legal error when it left Enbridge to its own devices for so many years, attempting “consultation” deep in unceded territories. Those court cases could last for years and many of us who are not First Nations or trained lawyers will certainly donate to see them succeed.

Some pipeline opponents also promise to physically interfere with construction, should it ever proceed. More blockades like the Unist’ot’en camp may well spring up in the north. Environmental groups are already fundraising to hold workshops on civil disobedience.

Other critics are thinking big-picture about the demand for oil and how to undermine the business case for raw bitumen exports. Whether clean-tech entrepreneurs or climate policy advocates, these groups aim to shift the market conditions that make projects like Northern Gateway profitable in the first place.

Put it this way: there are many ways to stop the pipeline. Some combination of the above would probably stifle Northern Gateway eventually. But British Columbians can’t afford to spend another five years fighting a single project that never should have been proposed in the first place. There’s so much else we need to work on.

I believe the swiftest, most decisive way to stop Enbridge is political — and the most powerful tool most of us have is our vote. That’s why I chose to join Dogwood Initiative. We’re political organizers without partisan baggage. We believe decisions should be made by the people who have to live with them. And we know if First Nations and B.C. voters had a democratic say over this project, Enbridge would be packed up and gone tomorrow.

Three political paths

Tyee columnist Bill Tieleman is right when he writes that a Conservative election loss in 2015 would likely end Enbridge’s pipe dream for good. Opposition leaders Tom Mulcair, Justin Trudeau and Elizabeth May have each promised to cancel the project should their party form government. Supporting their candidates federally is certainly one political path to stopping Northern Gateway. What do we do until then?

Bear in mind our provincial government also has jurisdiction and retains the right to say no. That was made clear in the federal announcement on Tuesday: “The proponent will need to seek various regulatory approvals from the federal government and the governments of British Columbia and Alberta … The Province of British Columbia would be responsible for issuing approximately 60 permits and authorizations.”

Recognize that number? “British Columbia has the power to grant or withhold 60 permits,” Premier Christy Clark told a university audience in Calgary back in 2012. Later that day she told reporters: “If British Columbia doesn’t give its consent to this, there is no way the federal government or anyone else in the country is going to be able to force it through. It just won’t happen.”

Clark is still saying no, for now. Meanwhile, Enbridge’s Al Monaco says “we’re not looking at these conditions as something we’re opposing. These conditions will help us make a better project. It’s up to B.C. to decide whether the conditions are met and it’s up to us to try and close the gap.” Pushing the Clark government toward a final rejection of those permits is the second political path to stopping Enbridge.

That brings us to the third and perhaps least understood course of action. Under a law unique to British Columbia, the people themselves have the right to draft a bill on a matter of provincial jurisdiction. With support from 10 per cent of fellow voters around the province, that bill can be handed over to MLAs to pass into law. For example, a law denying provincial permits to a pipeline that would carry diluted bitumen over hundreds of streams and rivers.

The first major challenge lies in the difficulty of the petition process. Not only must you gather signatures on paper, you have to round up support from 10 per cent of registered voters in every riding in the province. At the bare minimum that’s 320,000 people across all 85 electoral districts — within a three-month deadline.

Assuming canvassing teams pass this Herculean challenge, further pitfalls await. Mr. Tieleman was the strategist behind the Fight HST campaign and probably knows the legislation better than anyone in the province. As he points out, “The government can indeed chose to hold an initiative referendum, but the results are not binding. Or it can simply introduce the bill proposed by the petition into the B.C. legislature, but not even debate it, let alone pass it.”

Tieleman calls the law toothless, fundamentally flawed and designed to fail. Yet he marshalled thousands of volunteers to try it anyway. It begs the question: why bother?

Process versus political reality

The truth is that the initiative to end the harmonized sales tax wasn’t just about the merits of HST versus PST.

As campaign spokesman Bill Vander Zalm wrote in March 2010, “The campaign to defeat the HST has ballooned into something much bigger and even more significant than protesting an unjust, illegal and unethical tax. As profound as those arguments are, there is something deeper and even more powerful afoot. People are rising up to take back their democracy.”

Gordon Campbell didn’t just impose an unpopular tax; he misled the people of British Columbia. He broke a major election promise. Worse, it was later discovered his party planned it that way all along. At that point it doesn’t matter how many loopholes are built into the Recall and Initiative Act, none are big enough to jump through when hundreds of thousands of voters want your hide.

Mr. Tieleman says “Our victory depended on Campbell’s multiple miscalculations, including his decision to hold a binding referendum in 2011.” Tieleman is being modest. Fight HST was designed from the start to put Campbell in checkmate. It ended the premier’s elected career.

The underlying purpose of launching a citizens’ initiative, whether on sales tax or oil tankers, is not only to change legislation. The mechanism itself forces you to build massive, organized political power — the kind no elected official can afford to ignore.

It’s a high mountain to climb. The question is what lies at the top. What motivates people to commit to the journey?

Put it this way: what is the legacy of the HST victory? We switched back to paying PST last year. His Excellency Gordon Campbell is now Canada’s high commissioner in London. And four years after the election that started the whole scandal, Campbell’s successor Christy Clark stormed back to win a stronger majority government.

Where are the boxes and boxes of petition signatures? Presumably safe in a vault at Elections BC. Those people can never be emailed or called, invited to a workshop or asked to donate to a new campaign. Even if they could speak to each other, the threat of the HST has passed. Their affiliation was momentous, but short-lived.

Building beforehand

Here’s where Dogwood’s strategy differs. As of today we have not approached Elections BC to launch a citizens’ initiative. Instead we’re building ahead. We call it a democratic insurance policy in case Premier Clark pulls her own version of the HST flip-flop and gives a green light to Enbridge. The longer that day is delayed, the closer to ready our organizers will be.

So far Clark is standing up to Ottawa, which puts her in line with First Nations and a democratic majority of B.C. voters. That’s good, but we imagine she’s going to come under a lot of pressure to keep the door open for Enbridge. As the company pulls out its chequebook and starts knocking off the NEB’s conditions, we’ll be watching closely to see if Clark’s position shifts. As her own government told the joint review panel at the Enbridge hearings, “‘trust us’ isn’t good enough”.

Here’s where we’re at. In the 48 hours following the federal announcement on Northern Gateway, 48,000 new supporters signed our pledge at LetBCvote.ca. Total signatures now surpass 200,000 — collected in person, online and through cell phones.

We have the benefit of technology that campaigners could only dream of back when the Recall and Initiative Act was introduced in 1995. The other night we signed up our first community hall full of supporters via text message (try it out if you like: text “vote” to 604-265-4967). We’re investing in mapping software to make our teams on the ground more efficient. And social media has extended our reach like never before.

But those bells-and-whistles should not obscure the off-line, social core of the project.

The simple fact is every door we knock on prompts a face-to-face conversation between two neighbours. That in itself is positive. From there, every new signature represents another voter who shares our values — or someone we can help get registered to vote. Every canvassing shift teaches you more about your community. And every few blocks you meet someone who loves the idea so much they want a clipboard too.

The most exciting number to me so far is 7,000. That’s the number of British Columbians who’ve taken the brave step of offering to leave their house so they can talk about democracy with strangers. New volunteers get a phone call from their closest team leader and an invitation to the next local training workshop. (Apologies if it takes us a few days to get to you right now — we’re thrilled by the response but our systems are a little stretched.)

Before the federal announcement, we had teams in 33 ridings. Now powerful allies are stepping forward to say they want to work together to defeat Northern Gateway democratically. We’re in discussions with Unifor, Coastal First Nations and a raft of smaller groups — many of which are already established in their home communities.

Whether they take a formal hand in the initiative preparations or work on parallel projects in complementary ridings, our goal is to form a network of allied organizers across all 85 B.C. ridings.

The citizens’ initiative should be thought of as a last-ditch scenario. A final democratic line of defence if our provincial politicians let us down. But if they hold fast to their rejection of the Enbridge proposal, our training and preparation will not be in vain. As Bill Tieleman points out, there’s a federal election next year. Only one party supports Northern Gateway.  [Tyee]

Kai Nagata is the energy and democracy director of the Dogwood Initiative.

Unis’tot’en Camp. Save the Wild Coast

Save the Wild Coast

 

This is the most activist of the many groups working to follow the laws of the BC Aboriginal Nations and ban tankers from the coast and legally disrupt the construction of the Northern Gateway that would feed those tankers.

HOME: http://forestaction.wikidot.com/

 

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Spring training to stop the pipelines

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March 29-31 in Victoria, BC, Coast Salish Territory

Full schedule here

Saturday & Sunday, March 29 & 30: University of Victoria, Bob Wright Building, Room A104

Monday March 31: Norway House, 1110 Hillside Ave,

Victoria workshops and discussions on:

Non-violent civil disobedience
Warrior societies
Shaping conditions for grassroots revolt
Planning and preparation for action
Security culture & counter-surveillance
How to stop a goddamn pipeline
Fundraising for radicals
Legal rights and solidarity
Families in the resistance
Indigenous women in resistance

Full schedule here. Admission by donation. Coffee, tea, meals, snacks, and child-minding provided.

RSVP on Facebook and follow the No Pipelines page. Email wildcoast@riseup.net or phone Zoe for info: 250-813-3569.

Sponsored by Wild Coast and VIPIRG.

Permaculture Not Pipelines Camp May 12-30

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Volunteers are needed now and all year round
Help defend the land and water
Support indigenous resistance
Stop the pipelines!

Spring Work Camp May 12-30
The camp is building permaculture gardens, a traditional pithouse, and a new bunkhouse in the path of the pipelines.
Now recruiting:
Carpenters
Electricians
People with perrmaculture knowledge
Gardeners
General labourers

Apply to join the camp

Winter in the North

Four years ago, grassroots members of the Wet’suwet’en people of northern BC (western Canada) learned that oil and gas pipeline projects are planned to cross their territory without their permission.

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The indigenous leaders of Unis’tot’en Camp began turning away oil and gas company workers over a year ago. The land defenders set up a “soft blockade” to keep out the corporations, and started building a camp and permanent homes in the pipeline route. A large log cabin now houses the defenders and volunteers, while several pithouses are still under construction.

The camp hosts are scrambling to prepare for the coming storms. The camp was on high alert in November after two incidents of attempted arson on bridges near the camp at the end of October.

People all over Turtle Island are responding to the call for support and funds for security equipment. The camp is also calling for strong-hearted volunteers to watch over the camp and patrol the area this winter.

Volunteers should:

  • be willing to to travel to the camp and stay for two weeks or more
  • have experience and gear for winter hiking
  • be able to chop wood, carry water, and watch for intruders

Sign up to volunteer

The oil and gas representatives and police have made a couple forays into the territory, but so far they have avoided starting a full-scale confrontation.

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Donations will supply the camp with security cameras, motion sensors, night-vision equipment, and an all-terrain snowmobile to patrol the territory and watch for invaders.

The success of the camp jeopardizes oil and gas deals supposedly worth billions of dollars (plus the untold costs of spills and leaks, poisoned water, lost habitat, and human suffering). We know there is a risk of dirty tricks and intimidation tactics to try and scare the campers away. The more support we give, the less likely those tactics will work.

Click here to help Unis’tot’en Camp and defend the land defenders.

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Winter camp in the path of the pipelines

Winter is coming to Unis’tot’en Camp, and a crew is working to finish the roofs and walls on two traditional-style pithouses so visitors stay snug and warm when the snow comes.

The blockade camp is on guard every day. Hundreds of good-hearted people are contributing their time, labour, and funds to make this community what it is today – a force to be reckoned with. Please support the winter camp!

At this point, it looks like one of the pipeline projects that was “approved” to go through Wet’suwet’en territory has fallen drastically behind schedule. There’s no official announcement yet, but work was supposed to start in earnest a year ago. Could it be all the publicity and support for the Unis’tot’en blockade in the pipelines right-of-way scared the investors away? Or did we slow them down enough that a competitor beat them to the finish line? Stay tuned!

Protect the Sacred Headwaters from coal mining

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The Sacred Headwaters is the birthplace of Stikine, Nass, and Skeena, three of Northern BC’s major salmon-bearing rivers. Thousands of people from the northern interior to the coast depend on these watersheds for their livelihood and for the well-being of their families and communities. Now Fortune Minerals is actively test-drilling Klappan Mountain for an environmental assessment for a coal mine in the heart of the Sacred Headwaters.

Sign the petition. Pledge to join the Klabona Keepers. Skeena Watershed Conservation Coalition
Photo: Rally in Victoria, August 31, 2013 by Ann Jacobs

 

Unis’tot’en defenders evict pipeline crews from their territory

Great news: The caravan is back from the no-pipelines blockade at Unis’tot’en Camp and it was amazing. Thank you to everyone who helped make it happen! It’s great to see our circle expanding. The caravan was only the beginning – the real solidarity work is still ahead of us.

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A few days after the caravan left, the camp came under more pressure from pipeline companies trying to push into unceded indigenous territory. On July 19, the Unis’tot’en defenders evicted yet another pipeline crew from the territory. This time it was a two-person team that came in by helicopter.

This is the third time the defenders have sent surveyors packing and warned them not to come back. It seems the higher-ups have decided to ignore the warnings.

We’re ramping up to support the defenders. It looks like they are going to need all the help they can get. Here’s what we’re planning this summer and fall:

– Backcountry hiking and mapping
– Renewing the legal defense fund
– Benefit events for the camp

Join us! We’re getting ready to respond when there’s a call for a day of action. It’s a great opportunity to get with friends and build the resistance to pipelines and oil tankers.

Make a pledge to stop the pipelines.
Big cheers to everyone who contributed to support the caravan. Thank you for being part of this growing movement.

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Grassroots Wet’suwet’en people vs. the pipelines

The latest pipeline proposal for the “Energy Corridor” between Prince George and Kitimat has shifted the route to pass south of Unis’tot’en Camp.Center: Wedzin Kwah (Morice River), the point where grassroots Wet’suwet’en people are making a stand to stop pipeline companies from entering their unceded territory.

Top to bottom: Unis’tot’en Camp (star), Morice River West Forest Service Road (white line), fracking pipelines Pacific Trail (red) and Coastal Gas (blue); Enbridge Northern Gateway tar sands pipeline (black).

Last year, indigenous activists built two homes on the pipeline route on the bank of Wedzin Kwah. This year, the activists are expanding the defense of their land.

The last time a pipeline surveying crew tried to come in was November 2012. The crews were given trespass notices and escorted back across the bridge, off Unis’tot’en Clan land.

Join the summer action team. Donate to the caravan.

More about Unis’tot’en Camp.

Harper’s wrecking crew

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Last year, 2.5 million lakes and waterways were protected in Canada.

Today that total is 62 rivers and 93 lakes.

The San Juan River is not one of them.

The San Juan River is home to four salmon runs, ducks, geese, swans, otters, seals, and eagles.

Goldstream River and its salmon runs are no longer protected.

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Cowichan River and its salmon runs are no longer protected.

Cowichan Lake and its fish habitat are no longer protected.

Chemainus River and its salmon runs are no longer protected.

Sooke River and its salmon runs are no longer protected.

In 2012, Prime Minister Stephen Harper’s Omnibus Budget stripped away the rules that protected our rivers, lakes, and habitat for decades.

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Now, entire ecosystems can be bulldozed, blasted, and paved over without consultation.

That’s just one reason why indigenous people are rising up across the country.

Now is the time for all of us to defend the land, the water, the animals, and all living things.

Stand with the defenders of the Wild Coast.

Photos: San Juan River by Zoe Blunt

Unis’tot’en Camp

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Indigenous people in the path of the pipelines are evicting oil and gas crews from their land. Last summer, the Lhe Le Liyin defenders and the Unis’tot’en and Likhts’amisyu clans of the Wet’suwet’en First Nation put out a call for solidarity to stop the clearing and bulldozing of the pipeline route. We responded with a busload of volunteers and a convoy from BC, Ontario, Alberta, Colorado and the NW US, and we helped build the no-pipelines camp.

Support the action camp to stop the pipelines
Tar sands oil threatens land, water, human rights, wild salmon, migratory birds, shellfish beds, and all interior, marine and coastal species.

A more immediate threat than tarsands pipelines, the Pacific Trail pipeline would carry liquefied natural gas from the fracking fields of eastern BC to Kitimat for export. Pacific Trail would pump flammable LNG along much of the same route as the Enbridge line, through wetlands, forests, streams and wildlife habitat. The fracking pipeline was approved in spring 2012, and Pacific Trail announced work would start this fall. Crews started surveying along the Morice River earlier this year.

New Brunswick & Treaty Rights

NEW BRUNSWICK FIRST NATION CONSULTATION POLICY 

 A Framework for Relations

With Governments and Industry

 September 2003  

OVERVIEW

 This document states the policy of the Union of New Brunswick Indians and First Nations regarding consultation by governments and industry with their member Nations. Each First Nation will determine their own policy, this document is a global template for their use and changes can be made.

This policy is based on fiduciary principles and constitutional requirements as interpreted by Canadian courts.  It sets out the approach to First Nations consultation that we will insist upon in all dealings with the Governments of Canada and New Brunswick and with private parties seeking to operate in the First Nations’ traditional or Treaty territory.

Part I of this paper describes the background and present status of the First Nations consultation in New Brunswick as well as the key constitutional principles.  Part II sets out the Consultation Framework itself.

PART I 

  1. BACKGROUND

The English in New England started into a treaty process with the Aboriginal people they came in contact with and starting in the late 1600’s and well into the 1700’s a series of peace and friendship treaties were signed with the Aboriginal peoples of northeastern north America including the Atlantic region of eastern Canada.  The most important series of treaties covering the Maritimes were signed in 1725, (Boston, Dummer’s Treaty) 1726, (Annapolis) 1749, (Nova Scotia) 1752 (Nova Scotia)  and 1760-1761 (Nova Scotia) culminating in the Royal Proclamation of 1763 which recognized the Aboriginal peoples rights to their land unless they surrendered it to the Crown.

From the outset, the Crown often chose to ignore its Treaty obligations.  It regularly acted in breach of both the oral promises and the written terms of the Treaties.  For many years, First Nations had no legal recourse for broken Treaty promises or other breaches of their rights, apart from appealing to the honour of the Crown.

That changed in 1982 when the Governments of Canada and the provinces, including New Brunswick, agreed to entrench Treaty and Aboriginal rights in the Constitution.  Section 35 (1) of the Constitution Act, 1982 now gives First Nations’ rights constitutional protection from Crown infringement.  This means that the Governments of Canada and New Brunswick are constitutionally bound to respect the Treaty and Aboriginal rights of the First Nations, and can be held legally accountable when they do not.

  1. PRESENT STATUS

Despite this new constitutional reality, both Canada and New Brunswick have failed to recognize and implement their obligations under s.35 (1).

  1. KEY CONSTITUTIONAL PRINCIPLES

This policy is based on twelve key constitutional principles.  These principles will form the starting point of any discussions with government or industry:

Rights and Obligations

  1. New Brunswick First Nations have and assert Treaty and unextinguished Aboriginal rights.  These rights are protected by s. 35(1) of the Constitution Act, 1982.  The governments of Canada and New Brunswick are constitu-tionally bound to respect these rights, and are subject to legal recourse when they fail to do so.
  1. Both the federal and provincial Crown stands in a fiduciary relationship to New Brunswick First Nations.  Private third parties also owe fiduciary obligations to the First Nations when they are under Crown authority in ways that might affect the rights and interests of the First Nations i.e. Maritime and Northeast Pipeline Company, Pulp and Paper companies, etc.
  1. Actions of the Crown, as well as actions of third parties authorized by the Crown, that are inconsistent with the First Nations’ rights are invalid unless they can be justified according to fiduciary principles and the test laid down by the Supreme Court of Canada in R. v. Sparrow.
  1. Neither the Natural Resources Transfer Agreement, 1930, nor the federal/ provincial agreement of 1958 and the assertion of “provincial ownership” and control of natural resources in New Brunswick affect the constitutional obligations of the governments of Canada and New Brunswick to New Brunswick First Nations.
Infringement and the Sparrow Framework

 

  1. Actions taken by the Crown that directly of indirectly limit First Nations’ rights are presumed to infringe s. 35(1) of the Constitution Act, 1982 and must be justified according to the R. v. Sparrow test.
  1. The burden of justification is high and lies solely on the Crown.  The Crown must show that the infringement of First Nations’ rights:

(1)    serves a compelling and substantial objective; and

(2)    is consistent with the Crown’s fiduciary obligation.

  1. Justification under the Sparrow test requires the following:

-adequate consultation in good faith, to identify and address First Nations’ interests and concerns;

-adequate priority to First Nations rights versus those of other stakeholders;

-minimal impact on First Nations’ rights;

-mitigation measures to avoid impacts and to ensure that any impact that does occur is “as little as possible”;

-fair compensation for unavoidable infringements; and

-other efforts to ensure sensitivity and respect for First Nations’ rights.

Nature of the Consultation Process

 

  1. These requirements can only be met through a First Nations-specific consultation process.  New Brunswick First Nations are legally entitled to, and will insist upon, a distinct process directed to their own issues, interests, and concerns, and separate from any existing public processes.
  1. These requirements are triggered without the First Nations first having to go to court to prove their rights.  Governments are under a positive duty to be alert to possible infringements of Treaty and Aboriginal rights that might result from the exercise of Crown authority, and to be pro-active in avoiding or limiting any impacts.
  1. Although the Sparrow requirements are pre-requisites for the validity of Crown action, they do not end at the decision-making stage.  They are on-going and continuing for as long as Crown authority is being exercised.
  1. Where a third party is acting under Crown authority, the duties are owed both by the third party carrying out the activity, and by the Crown in its on-going supervisory role.
  1. The obligations of the Crown and the third party run parallel.  However, this does not reduce or replace the Crown’s own constitutional and fiduciary duties to First Nations.  The Crown’s duties cannot be delegated.

PART II

CONSULTATION FRAMEWORK 

This Consultation Framework sets out the process, which will guide us when interacting with Governments and industry. The validity of any action having an impact on the First Nations is conditional on the on-going fulfilment by Canada and New Brunswick and third parties of their constitutional and fiduciary obligations to consult with our First Nations in accordance with this Framework.

  1. PURPOSE

New Brunswick First Nations understand that federal and provincial decision-making and economic development in New Brunswick will affect them in both positive and negative ways.  We do not seek immunity, but to be full participants in decisions that affect us.  We seek to ensure that our rights and interests are respected, so as to minimize harmful effects and maximize beneficial ones.  In this regard:

-Our First Nations are deeply concerned about the social, environmental, ecological and cultural impacts these activities have on Crown decision-making and Crown-authorized activity on their lands and peoples.  They are concerned about the direct and indirect restrictions that will result to the exercise of their Treaty and Aboriginal rights, and on the impact this will have on their traditional way of life.

-Our First Nations are not opposed to economic development or other forms of change, but seek to share in its benefits.  They need to ensure that development of resources and other assets takes place in a manner that is sensitive to their rights, traditions, values and culture.  Our First Nations must be involved in the control and management of development that affects them, and they demand a share of the social and economic benefits that follow.

The Consultation Framework is the means to give effect to these goals.  It will guide and structure the relationship of our First Nations with governments and industry in all future dealings.

  1. APPLICATION

This Framework applies to all Crown decision-making and action by the governments of both Canada and New Brunswick that has the potential to affect the rights and interests of all our First Nations in New Brunswick.  This includes all Crown activity relating to the granting, renewal or transfer of tenures, rights, interests, leases, licences or permits by the Crown.  It also includes all other activities of government, whether legislative, regulatory or administrative in nature.

This Framework also applies to the actions of third parties, such as members of private industry, operating under Crown authority.  These third parties also owe fiduciary obligations to the First Nations in carrying out activities that affect them.

This Framework is not restricted to Crown decision-making, but applies to the on-going exercise of Crown authority.  It would thus apply not only to the Crown’s decision to grant a permit or issue a license, but to all work carried out under that permit or issue a license.

This Framework applies to impacts on our First Nations, wherever they occur within New Brunswick – whether on reserves, traditional territory or any other territory where Treaty and Aboriginal rights are exercised.

3.         NATURE OF THE DUTY TO CONSULT

In the Delgamuukw case, the Supreme Court of Canada made it clear that

-there is always a duty to consult;

-the nature and scope of the duty will vary in the circumstances;

-consultation requires a genuine attempt to address the concerns of the First Nations;

-normally, the duty will be “significantly deeper” than mere consultation;

-in some cases, it will require full First Nations consent.

The duty to consult must be carried out in good faith, based on full recognition of the rights and interests of our First Nations.   The purpose of consultation is to find an accommodation between First Nations’ interests, and those of the Crown and industry.  The accommodation of Treaty and Aboriginal rights extends to their economic, social, religious and cultural interests.

This first goal of consultation is to avoid any negative impacts on our First Nations and their members.  Where some impact is unavoidable, the goal is then to ensure that it is minimized and that the First Nations are properly compensated.

The duty to consult requires

-the affected First Nations is/are fully informed in a timely manner;

-that they be given a meaningful opportunity and capacity to express their interests and concerns; and

-that their views be given serious consideration and adopted.

-First Nations consent will be required.

The duty to consult will not be fulfilled by simply treating First Nations the same as other stakeholders.  First Nations are entitled to a distinct consultation process, addressed to their unique rights, interests and concerns.

  1. CONSULTATION GUIDELINE

The Governments of Canada and New Brunswick, as well as third party industry, must consult with New Brunswick First Nations according to the following guidelines:

  • Acknowledgment of Rights

The consultation process must begin with an express acknowledgment by the Crown and third parties that New Brunswick First Nations have constitutionally protected Aboriginal rights and Treaty rights and interests.  They must accept that protecting and honouring the First Nations’ rights is the starting point of consultation, and the overriding goal of the consultation process.

  • Provision of Information

The First Nations must be provided with all relevant information concerning a proposed decision in a timely way.  They must be fully informed, not just about the details of the proposed decision or action, but about its potential impact on them – what it will mean for the First Nations’ land, peoples, rights, title and existing relationships and activities.

The Crown and third parties have a positive duty to gather and assemble the necessary information and provide it to the First Nations.  This will often require commissioning independent studies and/or providing the First Nations with the resources and capacity to undertake the necessary analysis (see “Capacity-building”).  This must be done at the earliest possible stage.

The information must extend beyond the specific decision or proposal to examine broader, cumulative impacts.  Impacts cannot be considered in isolation, but only in the context of pre-existing impacts already experienced by the First Nations.

The provision of information is only the critical first step in the consultation process.  On its own, it cannot satisfy even the most minimal consultation requirement.  First Nations must also have an opportunity to respond, be heard, and have their consent (see “Two-way Process”).

  • Capacity-building

For consultation to be meaningful, the First Nations must be provided with the time and resources to enable them to participate effectively.  This requires funding for the hiring of the necessary in-house personnel and outside expertise.  The First Nations require sufficient resources to enable them to process and respond to applications, to conduct their own analysis, and to engage in meaningful discussions with the Crown and/or third parties.

  • Two-way Process

Consultation with the First Nations must be a two-way process.  This involves much more than the mere provision of information or the communication of decisions after-the fact.  The First Nations must be given an opportunity to express their interests and concerns and have them addressed in a meaningful way.

Problems or concerns identified by the First Nations must be specifically responded to.  Suggestions offered by the First Nations cannot be ignored; they must either be adopted, or valid reasons for rejection provided.

  • Avoiding Impacts

The first goal of consultation must be to avoid impacts on the First Nations’ rights and interests altogether.  The onus is on the Crown (and third parties, if any) to ensure that all reasonable alternatives that do not negatively impact on Treaty and Aboriginal rights has been considered.

  • Minimizing Unavoidable Impacts

If some degree of impact is unavoidable, the goal of consultation is to ensure that every possible effort is made to minimize the impact on the First Nations.  Again, the onus is on the Crown and third parties to examine all reasonable alternatives and to adopt the approach that impacts on the First Nations as little as possible.  By definition, the First Nations must be directly involved in this process.

  • Priority

Minimizing impacts requires that the First Nations’ interests be given first priority in relation to the Crown’s objectives and the interests of third parties.  First Nations priority is required by fiduciary principles.  The fiduciary relationship requires that the Crown not allow the interests of a third party, or its own interests, to trump its overriding obligations to the First Nations.

  • Fair Compensation

Even where impacts are minimized to the greatest extent possible, First Nations must be provided with compensation for impacts that remain.  Consultation is necessary to determine the level and form of compensation.

  • First Nations Involvement and Benefit-Sharing

Part of the process of ensuring adequate priority, minimal impact and fair compensation is to ensure that the First Nations are actively involved in decision-making, in the on-going control and management of projects including natural resource projects, and that they share in economic and other benefits.  This includes ensuring employment opportunities for First Nations members, as well as revenue sharing for the First Nations involved.  The First Nations must also remain active in any monitoring of the project, to ensure that the requirements of consultation, priority, minimal impacts and fair compensation are met on an on-going basis.

  • Mitigation, Accommodation and Compensation (MAC) Plan

The above efforts to minimize impacts and ensure fair compensation must be set out in a detailed Mitigation, Accommodation and Compensation (MAC) Plan.  The MAC Plan must lay out specific commitments in the way of mitigation, accommodation and compensation measures (such as, for example, steps to reduce impacts on wildlife movement and habitat, and commitments to environmental restoration, employment and job-training).

The MAC Plan is binding on both the Crown and third parties.  The Crown, as fiduciary, has the duty to supervise and enforce compliance with its terms.

  • Timing and Consequences

Consultation for the purpose of avoiding and minimizing impacts and accommodating the rights and interests of First Nations must be completed prior to the decision being made, the action carried out or the authorized activity-taking place.  Otherwise, the decision can be invalidated.

The duty does not end there.  Mitigation and accommodation measures must continue for the duration of the authorized activity; otherwise, both the decision and any action taken pursuant to it are subject to invalidation, and both the Crown and third parties are potentially liable for damages.  This could include an accounting of profits.

  1. 5.      REQUIREMENTS FOR INDUSTRY

Based on the above guidelines, New Brunswick First Nations will insist on the following terms in their relations with industry:

-A clear written acknowledgment by the company of the Treaty and unextinguished  Aboriginal rights of New Brunswick First Nations.

-Detailed information not only on the specific project proposed, but also on the company’s short, medium- and long-range plans in the area.  All proposals must be analyzed in relation to existing development, both by the company concerned and others.

-All company documentation must expressly identify the rights and interests of our First Nations.  This includes all information provided to shareholders, purchasers, lenders, governments and members of the public.  This will put all interested persons on notice that the company’s interests are encumbered by the rights and interests of the First Nations.  Failure to do so will render the company liable as a constructive trustee.

-Specific commitments to ensure that the affected First Nations are compensated for impacts and losses from the project, and that they share fully in its benefits.  This will normally be done through the MAC Plan.  These commitments will address matters such as revenue sharing, employment opportunities, capacity funding, hunting, fishing and trappers’ compensation and environmental restoration (to name only a few).

-A written commitment not to proceed with a project until the consultation process and necessary accommodations are complete.  This includes the design and implementation of the MAC Plan.

-The company must also acknowledge that its obligations continue for the duration of the project, and must agree to cease all activity if disputes arise as to compliance with the plan.

  1. 6.      THREE PHASES OF CONSULTATION

New Brunswick First Nations see the elements of consultation a breaking down into three phases:

  1. Pre-consultation
  2. Public Regulatory Processes
  3. First Nations-Specific Processes

Phase I:  Pre-Consultation

 

This is the information stage, where the Crown and third parties gather and assemble all relevant information and provide it to the First Nations.  This includes project-specific information, as well as information regarding impacts on First Nations, including cumulative impacts.  As well as being provided with objective and comprehensive information, First Nations must be given the time and resources to enable them to properly analyze and process this information at a timeline determined by them and not because some regulatory body has come up with an arbitrary time line or deadlines.

Phase II:  Public Regulatory Processes

 

In many cases, a given project or decision will be subject to public regulatory processes (such as National Energy Board or New Brunswick Public Utilities Board hearings).  These processes do not represent First Nations consultation, since they are not directed to First Nations’ issues, interests and concerns.  They cannot substitute for a First Nations-specific consultation process.

The First Nations are entitled to take part in these processes, just like other stakeholders and interested parties.  However, whether they do so is entirely up to them, and this decision is strictly “without prejudice”: a decision by our First Nations to participate in an existing public process cannot be seen as adequate First Nations consultation, nor can a refusal to take part be seen as an attempt to frustrate the consultation process.

Phase III:  First Nations-Specific Processes

 

First Nations-specific consultation involves both direct, two-way consultation between First Nations and the Crown; and three-way consultation with First Nations, the Crown and industry.  This phase of consultation always involves, a positive duty to accommodate the First Nations’ unique rights, interests and concerns.  The outcome must meet all the Sparrow, Delgamuuk justification factors, including priority, mitigation and compensation.

Where impacts cannot be avoided entirely, the Crown and First Nations must agree on the necessary mitigation, accommodation and compensation measures.  Any third parties will then be brought in to work out the details of implementing these measures through a Mitigation, Accommodation and Compensation (MAC) Plan.

The requirements of Phase III consultation are on going.  First Nations-specific consultation must continue for the duration of the project or activity, as a condition of its on-going validity.  Both the Crown and third parties are bound by their parallel fiduciary obligations to ensure that the Sparrow and Delgamuuk requirements continue to be met.

CONCLUSION

 These are the “rules of engagement” that New Brunswick First Nations will apply in all future dealings with the Governments of Canada and New Brunswick and with industry.

The First Nations have developed this policy as an attempt to provide certainty in the face of the continuing refusal of the federal and provincial Crown to present any coherent strategy for First Nations consultation.  This failure is in clear breach of the Crown’s fiduciary and constitutional obligations.

 

Fracking: costs.

Environment America

Screen Shot 2013-10-03 at 11.21.13 AMAs federal policy makers decide on rules for fracking on public lands, a new report calculates the toll of this dirty drilling on our environment, including 280 billion gallons of toxic wastewater generated by fracking in 2012—enough to flood all of Washington, DC, in a 22-foot deep toxic lagoon. The Environment America Research & Policy Center report, Fracking by the Numbers, is the first to measure the damaging footprint of fracking to date.

“The numbers don’t lie—fracking has taken a dirty and destructive toll on our environment,” said John Rumpler, senior attorney for Environment America. “If this dirty drilling continues unchecked, these numbers will only get worse.”

“At health clinics, we’re seeing nearby residents experiencing nausea, headaches and other symptoms linked to fracking pollution,” said David Brown, a toxicologist who has reviewed health data from Pennsylvania. “With billions of gallons of toxic waste coming each year, we’re just seeing the ‘tip of the iceberg’ in terms of health risks.”

The report measured key indicators of fracking threats across the country, including:

  • 280 billion gallons of toxic wastewater generated in 2012—enough to flood all of Washington, DC, in a 22-foot deep toxic lagoon
  • 450,000 tons of air pollution produced in one year
  • 250 billion gallons of fresh water used since 2005
  • 360,000 acres of land degraded since 2005
  • 100 million metric tons of global warming pollution since 2005

Fracking also inflicts other damage not quantified in the report—ranging from contamination of residential wells to ruined roads to earthquakes at disposal sites.

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Reviewing the totality of this fracking damage, the report’s authors conclude:

Given the scale and severity of fracking’s myriad impacts, constructing a regulatory regime sufficient to protect the environment and public health from dirty drilling—much less enforcing such safeguards at more than 80,000 wells, plus processing and waste disposal sites across the country—seems implausible. In states where fracking is already underway, an immediate moratorium is in order. In all other states, banning fracking is the prudent and necessary course to protect the environment and public health.

At the federal level, the report’s data on land destroyed by fracking operations comes as the Obama Administration considers a rule for fracking on public lands, and as the oil and gas industry is seeking to expand fracking to several places which help provide drinking water for millions of Americans—including the White River National Forest in Colorado and the Delaware River basin, which provides drinking water for more than 15 million Americans.

Along with the new numbers in today’s report, Environment America’s John Rumpler added one more: the more than 1 million public comments submitted this summer to the Obama administration rejecting its proposed rule for fracking on public lands as far too weak. Environment America is urging President Obama to follow the recommendation of his administration’s advisory panel on fracking to keep sensitive areas as off-limits to fracking.

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“We need decisive action from Washington to protect our communities,” said John Fenton, a rancher from Pavillion, Wyoming who last week appealed to federal officials to re-open an investigation into contamination of drinking water there.

“The bottom line is this: The numbers on fracking add up to an environmental nightmare,” said Rumpler. “For our environment and for public health, we need to put a stop to fracking.”

Of particular concern are the billions of gallons of toxic waste created from fracking, which threaten the environment, public health and drinking water. Environment America is calling on federal officials to close the loophole that exempts this waste from our nation’s hazardous waste law. Rep. Matt Cartwright (PA-17) has introduced the CLEANER Act, H.R. 2825, to close that loophole.

“The data from today’s report shows that fracking is taking a dirty and destructive toll on our environment and health,” concluded Rumpler. “It’s time for our federal officials to step up; they can start by keeping fracking out of our forests and away from our parks, and closing the loophole exempting toxic fracking waste from our nation’s hazardous waste law.”