Federal Court’s Trans Mountain Ruling Betrays Principles of Reconciliation
The decision found Trudeau government met the minimum legal requirements. For Indigenous peoples, that’s not enough.
Judith Sayers 5 Feb 2020 | TheTyee.ca
Judith Sayers (Kekinusuqs) is from the Hupacasath First Nation in Port Alberni, B.C. She President of the Nuu-chah-nulth Tribal Council and is an adjunct professor at the University of Victoria in Business and Environmental Studies.
The Federal Court of Appeal’s decision to uphold federal government approval for the Trans Mountain pipeline expansion project is devastating for the First Nations that launched the legal challenge.
The nine nations argued they had not been consulted properly before Prime Minister Justin Trudeau’s cabinet approved the pipeline. The second attempt at consultation was the result of an earlier court decision rejecting a first round of consultations as flawed.
Rueben George of the Tsleil-Waututh First Nation summed up the impact.
“Reconciliation stopped today,” he said.
When B.C. premier John Horgan said “the rule of law applies” in reference to the Coastal GasLink pipeline conflict, he meant that he would abide by an injunction granted by a provincial court to allow the company to enter and operate on Wet’suwet’en territory.
In doing so, he discounted a number of legal elements — and even an entire system of law — that arguably supercede the B.C. courts.
When it comes to injunctions, the deck is stacked.
The Yellowhead Institute reviewed over 100 injunction cases late last year. They found
that corporations succeeded in 76 per cent of injunctions filed against Indigenous nations, whereas requests for injunctions filed by Indigenous nations against governments and corporations were denied in over 80 per cent of cases.
And thus he also unwittingly raised larger questions about the legal aspects of the conflict.
Whose laws apply? And which laws?
The rule of law is far more complicated in this case than simply following an injunction. A pre-existing system of Indigenous governance, Supreme Court of Canada decisions, and a United Nations declaration all bring into question the legal validity of the injunction granted to Coastal GasLink.
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