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Crown’s Approach to Treaty 8 First Nations Consultation on the Enbridge Gateway Pipeline

Treaty 8; First Nations; Crown; Section 35(1); Enbridge Northen Gateway Pipeline; Kitimat; CEAA; Canadian Environmental Assessment Act; National Energy Board; NEB
West Coast Environmental Law

The proposed 1,170 kilometre-long Enbridge Gateway Pipeline project would stretch from the Alberta tar sands to a marine terminal at Kitimat and would result in an estimated 225 crude oil and condensate tankers a year travelling through the territories of Pacific coastal First Nations. The project proposal engages the jurisdiction and lawful authority of dozens of First Nations, from the Dene and Cree peoples of the Athabasca River basin in the east to the Haida in the west, as well as the nations who rely on the health of the Fraser, Skeena, and Mackenzie Rivers and their tributaries.

Decision-making about this project brings into play section 35(1) of the Canadian constitution, which recognizes and affirms Aboriginal and Treaty Rights and imposes a duty of honourable consultation and accommodation on the Crown.

The Crown’s decision-making responsibility over the pipeline, which comes from statutes including the Canadian Environmental Assessment Act (CEA Act) and the National Energy Board Act (NEB Act), is different from and subject to its constitutional duty to consult. As a result, the Crown must complete its consultation with affected Treaty 8 First Nations, in a way that fulfills the duty, before it makes a decision on the project.

Publication Date: 
June 1, 2009
Publication Pages: 
West Coast Environmental Law
Publication City: 
Vancouver, BC
Publication Format: