May 24, 2019
Bitumen Reference Case Decision – Response from Haida and Heiltsuk
This morning, the B.C. Court of Appeal handed down a decision that reduces the power of provinces to protect lands and waters from inter-provincial infrastructural projects, and fails to recognize the role of Indigenous peoples in protecting the environment. The decision will increase the risk of oil spills and environmental damage associated with the proposed Trans Mountain pipeline expansion.
“Today’s ruling is disappointing as it reveals the lack of understanding and/or unwillingness of the courts to properly recognize Indigenous jurisdiction over our territories. The failure to recognize our arguments in the ruling is a missed opportunity for the courts to demonstrate an act of genuine reconciliation,” says Nang Kaadlljuus President of the Haida Nation Gaagwiis Jason Alsop.
“The Court of Appeal’s ruling is offensive and irresponsible. It is unacceptable that despite being granted interested party status, the court failed to even acknowledge ours or any other Indigenous governments’ arguments in its decision. They invited us into the room, but they completely ignored us,” adds Marilyn Slett, elected Chief Councilor of the Heiltsuk Nation. “Despite over 30 years of litigation that has reinforced constitutional recognition of the rights of indigenous peoples, the Court took an overly narrow view. In this era of reconciliation and Crown commitments to implement the United Nations Declaration on the Rights of Indigenous Peoples, the decision today is a big step backwards. Heiltsuk will continue to advocate as a sovereign nation and a third order of government in Canada’s constitution. We will do this with the crown and in the courts.”
Heiltsuk and Haida were among four Indigenous interested persons that presented arguments to support B.C. in protecting the environment. They made arguments related to their inherent Indigenous title and rights and addressed gaps in the existing spill response framework that B.C.’s proposed legislation would address. However, today’s reasoning makes no mention of Indigenous arguments, instead referring solely to federal and provincial jurisdiction. Ignoring Indigenous jurisdiction reflects continued unwillingness to take practical steps towards reconciliation and recognition of title and rights in the real world.
Gaagwiis adds, “by ignoring our jurisdiction, laws and history of reconciliation on Haida Gwaii in this decision the courts have signalled that there is much work to do in educating lawyers and judges about the real history of Canada and the role of Indigenous governments in this idea of cooperative federalism. Indigenous governments are not equivalent in power to municipalities, that courts can choose to hear or ignore when convenient. We speak as Nations. Our laws and jurisdictions are the first order of government, as they flow from the natural laws of Earth. We have a responsibility to uphold these laws and protect our territories for future generations of our people and Canadians.”
Council of the Haida Nation