End of Day 2, the Gitxaala drum and sing for their lawyer in the lobby of the Federal Court of Appeal building, Vancouver, BC / Coast Salish territory – Oct 2, 2015
The second day of the Northern Gateway judicial reviews started out under Vancouver autumn’s trademark grey skies. It was a stark contrast to yesterday’s brilliant sunshine that saw hundreds of people come out in support of the eight First Nations bringing actions against the Federal government and Enbridge’s Northern Gateway – but the energy was equally buzzing and optimistic.
First up were the Nadleh Whut’en and Nak’azdli First Nations, represented by Cheryl Sharvit. She explained how the proposed project would cross her clients’ fish-bearing waterways and that they have never faced a risk this large from a single project. She explained why Northern Gateway’s position that Indigenous peoples’ law has no place in Canada is incorrect. She quoted UVic Law Professor and Indigenous law scholar John Borrows in stating, “Aboriginal practices are not just evidence that Aboriginal peoples did something in the past – they are law.” In response to a question from the bench, she explained that relevant laws included management and stewardship of water and fish.
Ms. Sharvit explained that when the federal government contemplated making a decision to open up her clients’ territory to a risk of an oil spill, it owed a duty to consult on the high end of the consultation spectrum – or “deep consultation.” Deep consultation would include involvement in the process used to come to a decision and would at least seek consensus (if not achieve it). She outlined how the Nadleh Whut’en and Nak’azdli provided suggestions to the government as to how they might be included, but the suggestions were ignored. She countered Canada’s argument that all First Nation applicants are seeking a “veto” with a reminder that they are seeking consultation and accommodation – something guaranteed by our Constitution.
Next, Michael Lee Ross and Grace Jackson represented the Gitga’at. They explained that their client had asserted Aboriginal title over an area impacted by the project but that Canada ignored the Gitga’at invitation to engage in title-based consultation. They argued that by the end of the Joint Review Panel (JRP) process, the panel had knowledge of their client’s Aboriginal title. Questions from the judges touched on whether the JRP’s report is a reviewable decision in addition to the Governor in Council (GIC) decision. Ms. Jackson responded that since the GIC adopted the legal errors from the JRP’s report, it incorporated errors in the report and so the report was necessarily reviewable. She touched on how the JRP report weighed positive impacts to other people against negative impacts to Aboriginal peoples.
The Gitxaala were represented by Robert Janes, who explained how the tanker traffic from the project would transport diluted bitumen through water and land his clients have used and owned for thousands of years. He dispelled the notion that Aboriginal title must necessarily be proven in Court and explained that his clients had established title through the JRP process – but Canada failed to offer any consultation with respect to title. He argued that the federal government was required to seek Gitxaala consent or to carry out the onerous process of justifying the infringement to their rights. Like others, he reminded the court that a right to be consulted is both procedural and substantive, and even if a Nation is properly accommodated in the end, if it wasn’t included in the procedure, it is a breach of the right. In response to a question about the timing of consultation and bringing claims he referenced the “classic runaround – you’re either too early or you’re too late” (referencing conflicting case law on this point).
It’s difficult to squeeze 85 minutes of oral argument that’s based on years of work and thousands of pages of evidence into a paragraph or two. Trust me when I say the arguments were based on a dense factual background, and complex law including questions of jurisdiction. I do not envy the judges or their clerks in the task that awaits them when writing a judgment (and that’s after two of six days of oral argument!)
Mr. Janes injected some welcome humour into his submission – it was a lesson in how effective well-timed levity can be in a courtroom (and reminded me how deceptively easy it appears when done well). At the end of his submissions, the viewing room, which appeared to be full of members of the Gitxaala Nation, applauded.
Lastly, the intervenor Amnesty International made submissions. Represented by Justin Safayeni and Colleen Bauman, Amnesty’s submissions centered on the importance of considering international law when interpreting Constitutional rights – and how the JRP report’s recommendation to GIC to approve the project is unreasonable based on international law. Mr. Safayeni specifically mentioned the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the duties it imposes on its signatories, including the duty to protect Indigenous peoples’ land and resource rights, as well as a duty to protect Indigenous peoples’ traditions and cultural practices.
In the past two days I’ve witnessed some of the best oral advocacy I’ve ever seen. I’m reminded of how important it is, as a lawyer-in-training, to watch experienced lawyers practice and hope any law students reading this will take the time to do so.
As we left the viewing room for the day, I contemplated how it seemed that the day was missing something, without the drumming and singing of the communities that had traveled so far to protect their territories and way of life. Then, as we exited the elevator to the main floor of the office building in which court was being held, members of the Gitxaala Nation drummed, sang and applauded for their lawyer, Robert Janes. The feeling of relief and the strong sense of community in that room reminded me that these people have been fighting this project for years – and though this may or may not be the end, it was a monumental step in the process.
Erin Gray is an Articled Student at the Environmental Law Centre