Reflections of two legal interns from Australia
As part of our internship with West Coast Environmental Law, we recently travelled with staff counsel to some of the Northern BC communities that would be affected by the proposed Enbridge pipelines and supertankers project, to the community hearings being currently being held by the National Energy Board. After several years sharpening our minds at Macquarie University in Australia, we were eager to engage with the reality, not just the theory, behind legal issues in which we both strongly believe: empowering communities to engage with decision making processes, strengthening environmental laws and promoting recognition of, and respect for, Aboriginal title and rights.
Similar to our home country of Australia, Canada’s long and largely unresolved legacy of colonialism is a central feature of the legal landscape. But First Nations communities are playing a critical role in the opposition to the pipelines project, with both the Save the Fraser Declaration and the Declaration of the Coastal First Nations representing powerful assertions of Indigenous laws.
Such opposition is symbolic of the quest for a more just, equitable and ecologically sustainable society overall. Operating in a wider context of land use conflict, climate change, environmental degradation and rapid resource development, this vision is a central theme which drives all of the work undertaken at West Coast.
Travelling with Josh Paterson, one of West Coast’s lawyers, to BC’s northern “capital”, Prince George, we had the opportunity to gain a fresh insight into the issues, shaped largely by the perspectives and experiences shared with us by members of some of the local communities likely to be significantly affected by the project. Communities that, in the event of an oil leak or spill, will bear a significant amount of the risks associated with this project and seemingly none of its purported economic benefits.
We were planning to attend one of these the National Energy Board hearings on the proposed Pipeliness and Tankers, which are taking place all along the proposed route of the pipelines. But first, we had time to explore the local area, allowing us some unique opportunities to place the broader economic and environmental issues in context.
On one evening, we attended a ‘poetry slam’ for sustainability. Themes from the performances covered life in a country town, growth, change and continuity, increasing degradation of the land, questions over the treatment of workers by large mining companies and the desire for autonomy over decisions affecting their community.
We were struck by the diversity of the people attending and performing. As one of the speakers noted, it seemed as though the growing concern over the potential impacts of the proposed pipelines project was joining together groups of people usually considered to be the most unlikely of allies.
From a First Nations Chief playing the blues on guitar, to a young mother singing a capella, to an Elder reading poetry, right through to a cowboy philosophizing as to the meaning of life, there was a real sense of community being fostered. Equally so, there was a powerful desire that these voices not only be heard, but also valued when it comes time for the National Energy Board (NEB) to either approve or reject the project.
The National Energy Board Community Hearings – Meaningful Public Participation?
This sense of community also had a strong presence when we arrived in Nak’azdli/Fort St. James to witness the Joint Review Panel hearing on the 2nd of February. Various members of the community and a large delegation of the Yinka Dene Alliance had congregated not only to express their opposition to the proposed project, but also to voice their concerns over a regulatory process which they perceive to be inherently flawed and weighted in favour of the proponent.
The Yinka Dene Alliance has elected to demonstrate these concerns by choosing not to intervene in the Joint Review Panel process, asserting that the process neither recognizes nor respects their Aboriginal title and rights and their authority in their own lands. The general public, too, have expressed concern about the federal regulatory process as it is incredibly rare for the NEB to recommend that a project proposal be rejected. Adding undoubtedly to these concerns has been the federal government’s recent attempts to undermine the process by labelling the project’s opponents as ‘radical’– a label that undermines public participation rather than encourages community involvement.
The hundreds of community members echoed many of the same ideas raised at the poetry slam the night before: a connection to the land and waters by which they are sustained, the importance of healthy watersheds and biologically diverse ecosystems to people’s livelihoods, and a recognition of the need for considered resource management and land use planning. One Elder recounted the changes that they had witnessed in their own lifetime in terms of how much the surrounding environment had changed, how it was no longer safe to swim in parts of the river, how the numbers of fish had dwindled significantly. All of these ideas seemed to reflect a system of values that simply did not have room for the level of risk the proposed Enbridge project would bring with it.
Click here to view the video of Nak’azdli First Nation Councillor Charlie Sam speaking on the steps of the Joint Review Panel venue.
Inside the hearings
Inside the hearings, these perspectives were echoed in the oral testimonies provided by members of the First Nations community, which emphasized the centrality of healthy watersheds and habitats for hunting, trapping and fishing practices that have supported their lifestyles since time immemorial, noted in the hearings transcript (at paras. 10465 onwards). The cultural importance of the land was also emphasized; one woman presented an overview of the ancestry of her Keyoh, a word meaning “territory” in the language of the Dakelh people. For both of us, this presentation drove home the long term and ongoing connection of the people with their land, and its importance to developing a sense of identity and place (at paras. 10569 onwards in the hearings transcript).
Overall, the heartfelt testimonies spoke to the immense social, cultural and ecological impacts the construction of the pipelines would have (see also, the hearings transcriptat paras. 10569 onwards). Of significant concern is the absence of publicly available, comprehensive and cumulative impact and risk assessment to inform the NEB’s decision, mentioned in the hearings transcript at para. 10737 onwards. In other words, those most affected by the decision seem - at least from our perspective - to lack confidence in the decision making process itself.
While the three members of the Joint Review Panel listened respectfully and carefully to all testimony, we wondered how much of it would actually influence their final decision. For example, the Joint Review Panel’s jurisdiction is limited by its own Agreement, which sets out specific terms of reference for the nature of oral testimony it can hear.
Beyond this, the Joint Review Panel’s mandate is limited to determining, firstly, whether there will be significant environmental impacts and, secondly, whether the project is in Canada’s public interest - a concept which, in our perspective, remains broad and largely undefined. That the NEB is only specifically required to assess the direct environmental effects of the project proposal, makes an adequate, comprehensive and considered exposition of the project’s cumulative effects seem, to us, highly doubtful. Such restrictive terms of reference reveal the limitations of a process designed to look at very limited types of impacts, potentially sidelining the concerns of the public and First Nations – those who will bear the brunt of the impacts and the risks.
As we walked outside into the cold, fresh air, both people and placards remained outside. Requests that the decision makers respect the free, prior and informed consent of First Nations – a legal principle enshrined under international law and endorsed by Canada - lingered as an unaddressed question by the whole process. The rolling protests that have taken place across the north of British Columbia, in places such as Fort St. James and, a few days later Prince Rupert where almost a thousand people marched in opposition to the project, reveal the community’s perceptions of the hearings process. They have a strong desire to be heard, to be respected and have a seat at the table when it comes to decisions that affect them – and yet many seem to feel that this is presently not the case.
This final point makes it all the more worrying that the federal government is likely to further weaken and limit environmental assessment of projects of this nature. It hardly seems efficient to foster this level of concern and opposition within the community. Nor would it seem efficient to have final decisions regarding these projects contested in the courts by First Nations asserting their constitutional right to be consulted and accommodated – especially when a better decision could have been made at the outset. These issues seem likely to hang over the regulatory processes for this and other similar projects until they are adequately resolved in a more collaborative, forward-thinking and constructive manner.
Reflections and conclusions
Our trip to Prince George and surrounding area was certainly eventful. Our experiences have shown us that there are much more fundamental issues at play that run deeper than any pipeline ever will. It’s not simply about the construction of the pipelines, the influx of supertankers along the west coast, and the marine terminal per se. This is just the battle on the surface: symptomatic of deeper issues which go right to the heart of society as a whole. It reveals underlying discourses about issues such as human rights, democratic processes, public participation in decision making and basic procedural fairness.
Beyond this, it’s about envisioning a strong future for our children, having access to clean and healthy watersheds, fostering community empowerment and respecting the title, rights and self-determination of Indigenous peoples.It’s the indignation of average, concerned people being labelled as radicals for these concerns; the aggressive framing of the issue as Canada vs. Radicals seems both inappropriate and unhelpful.
The people we met during our time in Prince George were not radicals. They were not ideological fundamentalists seeking to derail the interests of Canada. They were not enemies or adversaries of the state as has been recently claimed by those democratically elected to represent their interests. They are Canada. They are your average cowboy at the local Legion, your thoughtful and concerned elderly grandmother. They are the First Nations who have lived on this land since time immemorial, whose sense of identity and livelihood is tied to that land and those waters. They are the young parents trying to raise their children with a bit of faith in the world, worried about the legacy that will be left to them.
These are the people who sense that something is deeply wrong with a process that marginalizes their voices, with a government that holds itself to standards entirely different from the ideals underpinning the democratic system from which its mandate is derived. They are standing up for a more just process; a right to be heard and a seat at the table. With these points in mind, it is debatable whether the Joint Review Panel process truly fulfils the function of public participation given its limited mandate.
Working in public interest law is truly thrilling because it highlights that law is not simply a black letter concept, as it is taught in many law schools. Law is a dynamic process; a medium through which power and meaning are asserted and contested. It becomes dangerous when divorced from its social reality and context and becomes a mechanism more for the justification of power than encouraging a diverse and encompassing community.
Our brief time spent in northern BC has brought us to understand much more acutely that being a good lawyer and advocate not only involves direct engagement with the law itself, but a deeper engagement with society as a whole. One must also be a considered and compassionate listener, a thoughtful strategist and possess both the strength of character and hard-earned knowledge to speak in defence of a more just, equitable and ecologically sustainable future for us all – even in the face of adversity.
Our time here as legal interns has given us a much deeper appreciation than before of the exciting challenges posed by this particular form of legal work. Indeed, since starting at West Coast, we’ve been continually amazed and impressed by the diverse, multidisciplinary nature of the work done by a highly dedicated and passionate team, striving for the health of BC and its people.
By Julia Martignoni and Lyb Makin, Legal Interns from Macquarie Law School in Sydney, Australia