This is excellent news!
The NEB decision on Line 9 could have been appealed for many different reasons but the constitutional duty to consult First Nations is the strongest of them.
From their news release:
April 8, 2014, Muncey, Ontario
Chippewas of the Thames First Nation located 20 minutes west of London, Ontario, is seeking leave to appeal to the Federal Court of Appeal of the National Energy Board’s (NEB) decision granting Enbridge its Line 9 Project application.
The NEB’s Reasons for Decision were released on March 6, 2014. The NEB determined that, “any potential Project impacts on the rights and interests of Aboriginal groups are likely to be minimal and will be appropriately mitigated”. The appeal, filed by the Chippewas on Monday, requests leave to appeal the NEB’s decision because the decision was issued without the Crown conducting any meaningful consultation with the Thames First Nation in order to address the potential impacts of the Project on its recognized Aboriginal and Treaty rights.
According to the First Nation’s Chief, Chief Joe Miskokomon, “The age of the pipeline is a concern because we know that this 40-year old pipe is subject to corrosion and heavy crude is going to be shipped through in higher volumes. We feel that this raises the possibility of new impacts beyond the right-of-way and we are concerned about our water resources and the environment. The federal government has to consider our treaty and aboriginal rights enshrined within the constitution.”
Enbridge’s application to reverse the flow of the pipeline from east to west has now been approved by the NEB with some conditions. In addition to reversing the flow, the pipeline will allow for the transportation of a bitumen-based oil product, which is an additive used to dilute heavier crude, and will allow the total volume within the pipeline to increase from 240,000 barrels per day to 300,000 barrels per day.
Chippewas of the Thames First Nation filed evidence before the NEB hearing held in Toronto, by way of a traditional land use study, and was supported by an affidavit of Chief Miskokomon that asserted existing aboriginal and treaty rights within the same territory occupied by Line 9. The Chippewas of the Thames are requesting that the Federal Court of Appeal grant them leave in order to address the Crown’s failure to consult and accommodate their potentially impacted Aboriginal and Treaty rights which are recognized and affirmed by s. 35 of the Constitution Act, 1982.
Chief Miskokomon viewed the NEB process as an opportunity to express concerns about the Project impacts and have the Government consult and accommodate those concerns. However, Chief Miskokomon is disappointed with the Government’s failure to engage, “What the courts have stated in numerous decisions is that the Crown has a duty to consult First Nations when their rights may be potentially impacted by the Crown’s decision. This duty to consult with First Nations is based on the notion of reconciliation. While we view ourselves as stewards of the land, we recognize that there is a global economy, and we are being denied the dialogue to be included in solutions where Aboriginal and treaty rights are impacted by significant economic proposals put forward by industry and backed by the Canadian government. We are not going away and part of our fate rests with this appeal.”