First Nations Denied their Constitutional Right to Consultation

by kjohn on November 26, 2016 - 5:44pm

       Pipeline development has become a contentious issue in Canada.  Pipeline enthusiasts point to the role of fossil fuels in the Canadian economy as justification for the expense and risk involved in construction and operation.  On the other hand, environmental activists are adamant that further fossil fuels exploration and pipeline development is detrimental to the environment and negates Canada’s climate change mitigation commitments.  People belonging to the First Nations of Canada are particularly concerned about pipelines because land development and environmental degradation threaten their livelihoods and culture, and infringe on their treaty rights and constitutional right to hunt and trap on their traditional territory.  Yet, Canadian authorities continue to embrace pipeline development and expansion as a means of economic progress.


       In his article titled Northern Gateway pipeline approval overturne, Jason Proctor of CBC News explains that there was inadequate consultation between the Federal Government of Canada and First Nations groupsAccording to Proctor, the Federal Court of Appeal has overturned the federal government’s approval of the Endbridge Northern Gateway twin-pipeline project, which would run from Bruderheim, Alberta to Kitimat, British Columbia.  The proposed project would carry natural gas eastbound into Alberta and force diluted bitumen from the vast proven reserves of the Athabasca oil sands to the west coast, where it will be transported overseas. 


       Proctor identifies seven First Nations groups in British Columbia that are likely to be severely impacted by the project if it proceeds.  According to the Federal Court of Appeal, these groups were not granted an adequate level of consultation regarding the project, a constitutional right for First Nations in Canada.  Barry Robinson, an ecojustice lawyer interviewed for this news piece, explains that the court ruling gives backing to the resounding negative response from local communities, environmental groups and First Nations against the proposed project.


       I believe that the article is effective in explaining the Federal Court of Appeal ruling and the current state of the situation between the Federal Government, the judiciary, Endbridge Pipelines Inc., and First Nations groups.  However, the article fails to address the root of the conflict, an extremely important factor in understanding the issues at the centre of the battle. 


       First Nations opposition to natural resource development projects such as the Northern Gateway pipeline is the result of value-based conflict.  Value-based conflict involves differing ideas of natural resource management, and the goals that it ought to pursue.  Environmental values are deeply engrained in First Nations life and culture.  First Nations philosophy preaches respect and stewardship of the environment.  Many First Nations peoples develop and extraordinary spiritual relationship with nature.  As a result, First Nations groups believe that the most important factor in natural resource management is environmental protection.  However, corporations such as Endbridge Pipelines Inc. view profit as the most important goal.  Meanwhile, the Federal Government appears to value economic growth as a priority and attempts to balance economics, employment and the environment. 


       The different goals and values of natural resource management among the three main actors result in value-based conflict.  Recognizing the value-based roots of conflict between the federal government, Endbridge and First Nations in British Columbia is key to understanding the discourse and First Nations concern surrounding pipeline development in Canada. 


       While Canada’s authoritarian style of natural resource management can be viewed as supporting their claim to state legitimacy, the federal government has a duty to attentively consider the concerns of First Nations.  By not fulfilling its responsibilities to consult First Nations groups, abide by treaties and the constitution, and protect the environment, the government actually forfeits legitimacy in its quest to manage and develop Canada’s resources.



Proctor, J. (2016, June 30). Northern Gateway pipeline approval overturned. CBC British Columbia. Retrieved November 25, 2016, from



I decided to comment on your blog, because before this course I was not aware of the duty to consult First Nations, under Section 35 of Canada's constitution. I found that as I learnt about this duty to consult in class, that it still left room the First Nations groups to be treated unfairly. Learning that the duty to consult doesn't mean that an agreement must be reached before acting, as long as "sufficient" consultation. This is why your blog topic interested me, as I am eager to learn more about this duty, and whether or not the government is truly fulfilling it. I also think you did a good job of outlining the three main parties involved in pipeline debates in Canada, and effectively showed why and how the disagreements between these parties have come about. One piece of advice I have for you, if you decide to rewrite this blog is to show specific examples of how the government has not fulfilled it's duty to consult. This is a massive accusation and I think that you may need a stronger source or specific example of this happening to back up your claim. Overall, good blog, I think that this will be a recurring issue in Canada, as more and more pipelines are proposed that cross through Native American territory.

I was drawn to your post as pipeline issues are a “hot topic” in Canada right now, and is one that definitely has no clear solution! I myself am torn as to where I stand on the issue, as you can’t deny the huge economic importance of the oil and gas industry to Canada, but to what extent this mindset should come at the expense of the environment and First Nations livelihoods is a decision that should not be made lightly. This conflict is one that is not exclusive to the oil and gas industry, and I actually wrote about a strikingly similar situation involving the forest industry and an alleged inadequate duty to consult First Nations groups for my blog post. What amazes me is with systems that are clearly failing First Nations across all natural resource industries, there appears to be little to no effort to actually involve them in larger decision making processes. I think that while there is clearly value-based conflict as you mention, there is also a history of deep behavioural conflict between these interest groups that needs to be addressed if natural resource industries are to continue to drive the Canadian economy. In my opinion this can only be achieved if the original relationship of partnership with First Nations groups is made a priority to restore.

Its funny how relative and - there truly is no better word than the one you used - contentious the issues of pipelines are right now throughout North America. The movement has transcended beyond govt, beyond multinational corporations and banks and into the eyes of both the courts and the general public. For that very reason, I really appreciate the way in which you outlines each part and their associated conflict because collectively there is so so many in one situation. I actually just wrote a paper for another class on Aboriginal access to water and reading about legal tools such as duty to consult, and fiduciary duty gutted my stomach. In case you're unaware, fiduciary duty is essentially a legal claim that the government must act on the people they're governing's best behalf. This implies that Aboriginal communities deserve equal representation environmentally, socio-politically and economically and clearly there is a disconnect here, not only in relation to water but these same claims can be made for pipelines.

I agree that this malpractice forfeits legitimacy, however, it is fundamentally wrong that Aboriginals take the majority of the consequences rather than the government itself. Im glad that this is an issue that is gaining social and political backing, and I hope more people take a stance similar to yours. I enjoyed this read and I hope it stimulates some interesting discussion.

Great post Kevin!
Although it is very sad to continually pipelines being proposed through these communities and threatening their livelihood, I think that the courts overturning this approval is a good step in the right direction as this will set an example for future cases. I like how mentioned the value-based conflict found in this situation but I think it is also worth to mention the behavioral conflict at play here that demonstrates a lack of trust in government from the First Nation communities. I wonder if these pipelines would even be proposed if they happened to pass through a privileged neighborhood?

The way you began your piece was really interesting- stating the unbiased opinions of both sides- it really strengthened how you continued to form your stance on the issue. There was a bit of choppiness between paragraphs and connecting ideas which could be improved on. Overall, this was a great article. You smoothly related everything to course content and backed your opinions. I am so happy to be reading this after the official rejection of the Northern Gateway Pipeline!!