Game-changing: The Bitumen Reference Case

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” case that, after being dismissed by the Federal Court of Appeals, is now set to be heard before the Supreme Court of Canada. 

Maybe, though, that question isn’t broad enough. 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? 

That key question is why the Haida, Heiltsuk, and Little Shuswap Nations filed for intervenor status with the Supreme Court of Canada this week. 

Here’s a chance for Indigenous Nations to weigh in on age-old Canadian squabble over the division of powers between province and feds. Arguing in support of British Columbia’s right to limit the transport of dirty oil, these Indigenous Nation are also emphasizing their rights as sovereign Nations and asserting Indigenous jurisdiction over the environment. 

If their intervention status is approved, three Indigenous Nations will be getting rare access to the Supreme Court to bring home the message that as an order of government, they also have jurisdictional powers over the flow of tar sands oil through their territories. Even more broadly, their arguments address the urgent need to broaden Canada’s “cooperative federalism” approach to include Indigenous law-making and Indigenous governments.

In an inspiring show of solidarity, the lawyers are working entirely pro bono on this case. This means that RAVEN only needed to raise $8k for the filing fee. Thanks to this incredible community of folks putting reconciliation into action, we surpassed our fundraising goal and Nations are now able to file!

To put it plainly: the bitumen reference is an inexpensive way for Nations to get their message in to the highest court in the land. Now, with our successful Intervention Fund, we are able to help get Indigenous voices to the Supreme Court. 

“As this Court wrestles with the concept of reconciliation with the Indigenous Nations of Canada, it will need to deal with the question of the inter-relationship between the unceded sovereignty of Indigenous Nations within Canada over their peoples and their territories on one hand and the sovereignty of Her Majesty the Queen (…) on the other. Accordingly, it is all the more important to have Indigenous Nations before the (Supreme) Court when addressing jurisdictional issues over matters that may be subject to Indigenous jurisdiction or laws.” – from the Little Shuswap Notice of Motion 

The bitumen case throws another legal hurdle in the path of the Trans Mountain pipeline, as a win for the province of B.C. would potentially allow limits to be placed on what kind of oil, and what quantity, could pass from Alberta to BC tidewater.

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