How to argue your case

Haida legal team. L-R: Lalaxaaygans (Terri- Lynn Williams Davidson), Michael jackson and David Patterson.
Haida legal team. L-R: Lalaxaaygans (Terri-Lynn Williams-Davidson), Michael Jackson, David Patterson and Elizabeth Bulbrook (taking photo).

The Haida nation’s legal team, Terri-Lynn Williams-Davidson, Michael Jackson, David Patterson and Elizabeth Bulbrook, presented the nation’s arguments yesterday at the Federal Court of Appeal, challenging the approval of the Enbridge pipeline project. The Haida team was part of thirteen applicants seeking to have the federal government’s approval of the project overturned.

Ms Williams-Davidson walked the three judges through the Haida nation’s argument, which was based on the agreements made with Canada and BC in the spirit of reconciliation. These included the Gwaii Haanas, Kunstaa Guu–Kunstaayah and SGaan Kinghlas agreements:

1. Show how the agreements demonstrate an institutional expression and context of the distinctive Haida perspective on Haida Title and Rights, and their reconciliation with the Crown’s asserted sovereignty. And, how the agreements provide more substance to the crown’s duty to consult the Haida nation.

2. Review how the agreements have been viewed by the courts and show that this is consistent with the courts interpretive lens for aboriginal agreements. A ruling delivered this past August adds another piece to the growing list of case law supporting First Nations interpretation and assertions in Canadian courts. (Long Plain First Nation – ruling delivered August 14, 2015)

3. Address Canada’s argument which is designed to minimize and marginalize the relevance and significance of the Haida agreements. An argument, Ms Williams-Davidson said is inconsistent and would undermine the three-fold objectives and obligations identified by the federal court in Long Plain. These are: honourable conduct, reconciliation, and fair dealing with aboriginal people.

4. The fourth argument described what a legally sufficient consultation process would look like in the context of the Haida agreements if those agreements were adhered to, rather than being dismissed as having no bearing on the hearing process, which is what Canada and Enbridge are inferring.

The main sixth floor courtroom at the Pacific Centre was filled to capacity with lawyers with room only for a few special guests. The overflow room was also packed with over 100 watching a video feed of the main courtroom with another room being opened to accommodate the growing crowd.

The presentations by the allied First Nations, non-governmental organizations and Unifor, continue today, break for the weekend. Next week Canada and Enbridge are putting forward their arguments.

A ruling may come down before the end of the year, but it is expected in the first quarter of 2016.

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