A Measure of Integrity: First Nations Respond to the Bitumen Reference Case Decision

Who gets to regulate the flow of bitumen through boundary-traversing pipelines: the province or the federal government? That’s been the question at the heart of the prosaically-named “Bitumen Reference” legal action that was heard by the Supreme Court of Canada after British Columbia appealed an unfavourable verdict by the Federal Court of Appeal. 

On January 16, three First Nations – Heiltsuk, Haida and Little Shuswap – appeared as intervenors before the Supreme Court of Canada in Attorney General of British Columbia vs Attorney General of Canada, a.k.a. the “bitumen reference” case. The three First Nation intervenors argued in support of B.C.’s jurisdiction to protect communities and the environment while emphasizing the right of First Nations to apply their own laws on their territories. As part of their argument, the Heiltsuk described their first-hand experience with legal gaps in federal oil spill laws, which became woefully apparent after the Nathan E. Stewart oil spill. 

In this era of reconciliation and ‘nation-to-nation’ relations, why shouldn’t First Nations have a say in how risky oil transits through their unceded territories? The case offered an opportunity to First Nations to both support BC’s intention to protect the province from oil spills, and argue the standing of their own Indigenous laws.

Unfortunately, in a unanimous decision delivered orally by Chief Justice Richard Wagner right after the hearing, the Supreme Court found that Canada has exclusive jurisdiction over pipelines that cross provincial boundaries. The written decision is yet to be issued. Ecojustice lawyer Harry Wruck, an intervener in the case, said environmental concerns should override other constitutional considerations.

“Environmental protection underpins the whole Constitution. Without a viable environment we cannot have a Constitution, we cannot have a nation based on laws, we cannot have institutions, we cannot have a society, in effect,” Wruck said.

While mainstream media has portrayed this decision as a “humiliation” (via CBC), prioritizing Alberta’s interpretation as it being a “slap-down”,  the oil and gas industry’s  jubilation may be premature. What is missing from the media coverage and popular discourse are the perspectives of the three First Nations who asserted their Indigenous law and rights, backed by a determined community of supporters who raised over $100k for their legal action. The pursuit for justice and jurisdiction in the bitumen reference case is far from humiliating, it is an assertion of Indigenous rights and environmental stewardship. 

RAVEN spoke with Lisa Fong, counsel for Heiltsuk Nation, on the Supreme Court’s decision.

“While we are disappointed by the outcome and troubled by the manner in which the decision was rendered, we have met Heiltsuk’s goal of speaking as an order of government on the constitutionality of legislation that engages environmental protection. This work continues to pave the way for Heiltsuk and other Indigenous governments to engage in the courts on important constitutional issues that impact them,” said Fong. 

The Supreme Court judgement is a failed opportunity to listen to the original title holders and stewards of the land and to contribute to a new understanding of federalism in Canadian society – one that includes First Nations.

Success is not linear and this setback does not deter the path forward for Indigenous and environmental justice. The movement for Indigenous rights continues, as Tsleil-Waututh, Coldwater and Squamish Nations continue to pursue legal challenges to stop the Trans Mountain pipeline and tankers expansion project.

At RAVEN we are continuing to support the First Nations to stop TMX with our campaign, Pull Together, which raises legal funds for their legal challenges. If you want to support Indigenous rights and protect the environment, organize an event in your community here.


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