In its project description that was filed with the National Energy Board (NEB) in March 2014, TransCanada claimed it had begun preliminary discussions with Aboriginal Communities, the purpose of which was to provide ongoing information about the project, obtain local and traditional knowledge and other socio-economic information relating to the project, facilitate economic participation, identify potential concerns, and determine appropriate mitigation strategies. Because many First Nations are in close proximity to the proposed pipeline route, Transcanada is conducting a process of “stakeholder engagement” with affected Aboriginal communities along the pipeline route.
Some First Nations Communities have said they would like to obtain equity positions to own a portion of the pipeline, or revenue-sharing agreements. TransCanada has said it will not offer Aboriginal Communities equity stakes in the Energy East pipeline.
TransCanada has claimed on its website that it will offer capacity funding and resources to support the participation of Aboriginal Communities in the engagement process. Some communities have expressed an interest in this funding to conduct their own community consultation processes, evaluate the Energy East Project, and provide feedback. Aboriginal communities and community members may also apply to the NEB to participate in a hearing and for participant funding to help cover the costs of participating.
The above processes, however, do not substitute for the duty to consult and accommodate by the federal Crown as Energy East could have tangential effect on inherent Aboriginal and treaty rights. Indeed, case law has proven a constitutional requirement as per section 35 of the Constitution Act of 1982:
Aboriginal peoples are entitled at law to have a clear and decisive voice in Crown decisions which may impact not only the use and disposition of their traditional lands and resources but also their social and cultural well being. Unilateral decision-making by the Crown is no longer legal in this context. Aboriginal title, and its attendant right to choose how lands and resources are managed and used, entitles First Nations to be involved in Crown decisions affecting their people, communities, cultures, lands, and resources. This requires bona fide government to government consultation and accommodation.
However, it is apparent that while there is legal basis for the duty to consult and accommodate Aboriginal and treaty rights, rarely has this happened through a good faith, nation-to-nation process that also includes the right of First Nations to say “no”. A recent report released by the UN Special Rapporteur on the Rights of Indigenous Peoples claims that Canada is failing is its constitutional duty to consult First Nations with respect to development projects that affect their land, and major pipelines projects should not proceed without this consent. Given the Crown’s track record, the right to free, prior, and informed consent – a right of indigenous peoples that was internationally enshrined in 2008 within the Declaration on the Rights of Indigenous Peoples – is likely only to be realized through Aboriginal assertions of sovereignty and their Traditional Laws as demonstrated at the Unist‘ot‘en Camp in northern BC.
Gidakiiminaan is an Ojibwe word that communicates the indigenous peoples’ responsibility to the land. It embodies the total connection of Anishnaabe people to Mother Earth, which is an important part of Anishnaabe identity and informs their environmental ethic. This, again, raises an additional issue with the privileging of the legal emphasis on Aboriginal rights and the duty to consult versus the traditional rights and responsibilities that are held by Anishnaabe people.
While this responsibility is often interpreted differently when it comes to development projects, such as Energy East, Anishnaabe women continue to carry the traditional responsibility of caring for Mother Earth’s bloodline - water. Water is life and provides sustenance; similarly, women are life-givers, traditional caregivers of children and the elderly, and therefore, keepers of the water. Unfortunately, women’s wisdom has often been sidelined through imposed resource development and Western water management systems.
The extent to which Energy East and NEB process respects this knowledge and responsibility is, at best, questionable. But, it is the responsibility exercised by Aboriginal communities, particularly women, and the support of allies that offers the greatest potential for the protection of our shared lands.