On March 23rd, 2010 several First Nations peoples of the Central and North Pacific Coast and Haida Gwaii (the “Coastal First Nations”) issued an unequivocal declaration banning Tar Sands crude oil tanker traffic from their territories. The Coastal First Nations Declaration was prompted by a Tar Sands mega-project proposed by Enbridge Inc. The proposed 1,170 kilometre-long Enbridge Northern 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 Coastal First Nations. This commentary examines the legal significance of the Coastal First Nations Declaration.
In making the March 23rd Declaration, Coastal First Nations exercised their ancestral laws, rights and responsibilities over the lands and waters of their territories. A federal government decision to allow the Enbridge Northern Gateway Pipeline project and related tanker traffic, contrary to the Coastal First Nations declaration, would infringe on their constitutionally-protected Aboriginal Title and Rights and breach Canada’s international law obligations. The Coastal First Nations Declaration opens any company who facilitates the transportation of Tar Sands crude oil through Coastal First Nations territories to potential enforcement action grounded in these nations’ respective laws and customs. Furthermore, the large number of impacted nations, the strength of opposition to the project, and weaknesses in the Crown’s proposed review process create a volatile legal situation and a high probability of litigation by one or more First Nations that could delay or potentially derail the project.