The COTTFN are currently undertaking a Supreme Court case against Enbridge, Inc. over their Line 9 pipeline, which transports crude oil and bitumen from Sarnia to Montréal. Although the line doesn’t enter the borders of the reservation, it crosses the Thames River directly upstream from them, and enters into their traditional territory.
Legally, companies like Enbridge have an obligation to consult with and, to an extent, accommodate Aboriginal peoples.
The COTTFN’s argument is that there is no strong policy or regulation put in place to determine the extent of consultation, or the roles of the National Energy Board, the company, and the indigenous group being affected. This inconsistency and lack of inclusion in decision-making effectively infringes on the COTTFN’s treaty rights.“We weren’t really sure what we were doing at the start, because we’ve never been intervenors before, we’ve never looked at the process before,” said COTTFN band councillor Myeengun Henry in an interview with The Ontarion at the fundraising event.
This court case is by no means the band’s first interaction with Enbridge in court. The COTTFN began intervening at National Energy Board (NEB) hearings in 2012.
“It felt like more of a formality, it wasn’t really such a hearing of any sort,” said Henry. “It was just a matter of them checking off a box that they heard our nation. […] They didn’t really understand how tar sands and bitumen oil could be dangerous to our community, our water, our hunting and gathering rights.”
When the project moved forward despite their efforts, the band took their case to the Canadian Federal Court of Appeals, which ultimately decided against them 2-1.
Following the ruling against them, the COTTFN regrouped and strengthened their argument. As a community, they decided to make an application to the Supreme Court of Canada.
“They wanted to go and shut this line down on their own,” said Henry of some band members. “Our argument was that we would exhaust the legal system, and if we were able to get to the Supreme Court, that would be the highest level of court that would hear our case.”
That’s where the band is now—they have challenged the ruling against them in the Supreme Court. It’s a high-risk, high-reward situation: they estimate that the costs incurred throughout this process will total $500,000, but a win would see the implementation of more detailed policy on environmental governance and social responsibility. A successful case could determine how future consultations and processes are enacted.
“We’re crowdfunding, we’re going to events and trying to find funding to [sustain] this court case, and they’re sitting back watching the oil flow through our territory, and profiting right now,” said Henry.
The Enbridge Line 9 has been running since December 2015, although its infrastructure is approximately 39 years old. The band cites treaty rights, the Canadian Constitution, and Canada’s commitment to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in their argument against Enbridge and the NEB.
“I’m really grateful for the Chippewas of the Thames Council, because they’re taking on an immense risk in order to challenge Enbridge, and to challenge the National Energy Board,” said the event’s co-host Sakihitowin Awasis in an interview with The Ontarion. “I think that it’s really important that we support each other to be able to take these risks.”
Awasis is an Oji-Cree Métis who lives in London. She attended the first NEB hearing in May 2012 and has been involved ever since.
Though the event focused on the issues the COTTFN are currently facing, the ongoing protests against the Dakota Access Pipeline at Standing Rock were also addressed.
“This is why we’re here tonight,” said co-host Lindsay Grey to the crowd. “It’s to bring awareness [for] the Chippewas of the Thames and with Standing Rock, who are facing the challenges of a pipeline that’s coming to their community. A pipeline is already in our community, and it’s impacting us so much. It’s great that you’re all here to listen to our stories.”
Grey is from the Aamjiwnaang First Nation, which is located along the St. Clair River in Sarnia.
This region is known as the “Chemical Valley” due to the flurry of ongoing industrial activity there.
Dr. Sheri Longboat, a professor in the rural planning and development program at the University of Guelph, provided contextual insight to these issues as both an expert in resource management and a member of the Mohawk from Six Nations.
“With Standing Rock, as with many indigenous communities, it becomes a sociopolitical issue when we bring in the context of consultation, informed consent, [giving] indigenous peoples a sense of self-determination,” Longboat explained. “The issue here is that these projects need to follow due consultation [and] due accommodation to allow the communities of those most impacted to investigate these options.”
The COTTFN’s case will be heard in Ottawa on Nov. 30.
Photo by Claire Wilcox.