RAVEN - Respecting Aboriginal Values and Environmental Needs

Bitumen Reference

Preventing bitumen pollution from pipelines and tankers

Between March 18 and March 26, 2019, three Nations – Heiltsuk, Haida and Little Shuswap – will be heard in the BC Court of Appeal. They will be appearing as intervenors in a seminal case that will determine whether BC has jurisdiction to enact stronger measures of accountability in the transport of heavy oil.

The Heiltsuk, Haida and Little Shuswap will be arguing in support of BC’s jurisdiction to protect communities and the environment (which the federal government is opposing) while emphasizing the right of First Nations to apply their own laws to federal oil projects.

The bitumen case adds another legal barrier that could affect the proposed Trans Mountain pipeline, currently in legal limbo after its environmental certificate was quashed in the fall of 2018 following Indigenous legal challenges. If the judge decides that BC does  have jurisdiction to regulate bitumen transports in the province, BC may impose conditions such as extra permits on the controversial project.

 

 

$190,089

 

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In 2018, RAVEN raised $150,000 for the three First Nations to develop legal arguments and present them at the hearing.

“Just as we are asking the court to recognize the province’s jurisdiction to enact these environmental protections within B.C., we are asking them to recognize Indigenous governments’ jurisdiction to do the same in our traditional territories.”

— Heiltsuk Chief Marilyn Slett.

 

Acting as intervenors in existing court cases brought by governments or corporations is a powerful way for First Nations to bring Indigenous interests, concerns and perspectives before the courts without the burden of filing their own a case. Yet too often even that level of participation can be financially prohibitive for Indigenous communities. This is why we are especially delighted that we were able to support the participation of Heiltsuk, Haida and Little Shuswap in the bitumen reference.

 

The presence of these Indigenous intervenors will help broaden the case beyond a jurisdictional tug-of-war between the province and the feds, and may contribute to a new understanding of federalism in Canadian society, one that includes First Nations as original title holders.

What is the “bitumen reference”?

The “bitumen reference”, as the case has become known, is different from a regular lawsuit. A reference is a process in which the executive branch of government asks the judiciary to clarify the law in order to guide the drafting of new legislation and policy. In this case, the BC Lieutenant Governor in Council asked the BC Court of Appeal in 2018 to determine whether the province has the jurisdiction to restrict bitumen shipments across its borders. In addition to hearing submissions from the Attorneys-General of BC and Canada, the court will also hear a number of intervenors on all sides of the issue. This offers 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.

What arguments will the three First Nations be presenting in court?

In their argument, the Heiltsuk Nation invokes the doctrine of cooperative federalism and calls on the court to recognize that Indigenous governments are an order of government within Canada, with jurisdiction to make laws about environmental protection in their territories. Indigenous Peoples’ inherent right to self-government has been explicitly recognized by the governments of both Canada and BC, as well as the courts. Heiltsuk argues that BC’s proposed amendments related to bitumen transport are compatible with federal laws, and points to gaps and dangers in exclusively federal measures relating to oil spills, based on the nation’s experience with failure of clean-up and follow-up after the catastrophic Nathan E. Stewart oil spill in Heiltsuk territory in 2016.

“While the interrelationship of Indigenous and Crown jurisdiction (under ss. 91, 92 and s. 35) must continue to develop in B.C., this court should recognize that, in principle, Indigenous governments are an order of government in Canada, with jurisdiction to make laws about environmental protection within their territories. Silence about Indigenous jurisdiction risks perpetuating an incomplete understanding of the constitutional jurisdiction over the environment under ss. 91, 92 and 35, and also maintains a damaging presumption – one that perhaps stems from discovery doctrine – that Indigenous peoples have no inherent right of sovereignty until they either prove a specific right of self-government to a court or reach a comprehensive agreement with the Crown. (From the Heiltsuk written argument)

The Council of the Haida Nation similarly argues that cooperative federalism extends beyond federal and provincial jurisdiction and includes Indigenous jurisdiction.
Little Shuswap Lake Indian Band offers the “upstream” perspective of a Nation whose territory is not directly in the path of the proposed Trans Mountain pipeline. Little Shuswap argues that the exercise of its self-governance powers must be considered in the constitutional analysis of the scope and ambit of proposed legislation.

What would victory in court look like?

While new regulations proposed by BC wouldn’t be able to prevent bitumen flowing through a federal pipeline, the judge may rule that BC has jurisdiction to impose conditions on the pipeline operator, such as a hazardous substance permit, or require the operator to prove that it is equipped to fully clean up a bitumen spill.

According to legal expert Jocelyn Stacey, an assistant professor specializing in environmental law at UBC’s Peter A. Allard School of Law, there are precedents in favour of BC’s jurisdiction to pass such legislation – including the B.C. Supreme Court’s decision in the Coastal First Nations case against Enbridge, where the court recognized that the pipeline disproportionately affected B.C.’s interests.


Acting as intervenors in existing court cases brought by governments or corporations is a powerful way for First Nations to bring Indigenous interests, concerns and perspectives before the courts without the burden of filing their own a case. Yet too often even that level of participation can be financially prohibitive for Indigenous communities. This is why we are especially delighted that we were able to support the participation of Heiltsuk, Haida and Little Shuswap in the bitumen reference.

The presence of these Indigenous intervenors will help broaden the case beyond a jurisdictional tug-of-war between the province and the feds, and may contribute to a new understanding of federalism – one that includes First Nations as original title holders – among Canadians at large.


“If amendments like these had been in place when our community suffered an oil spill, our recovery would be much further along than it is now. Instead, it’s been over two years and we are still in limbo,” says Marilyn Slett, elected Chief Councillor of the Heiltsuk Nation. “Regardless of where they occur, spills are a multi-government issue and leaving them in the domain of just one government is bad for the community, bad for business, and bad for the environment.”

“Instead of recognizing our jurisdiction outright, the status quo demands we bring costly, onerous litigation whenever we want to exercise our inherent right to self-government,” says Heiltsuk hereditary chief, Harvey Humchitt. “In this so-called era of reconciliation, supposedly inalienable Indigenous sovereignty is being won on case-by-case basis at a considerable cost to nations.”

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