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Tuesday, June 10, 2014 by Will Horter

Harper and Enbridge’s massive angry inch problem

It’s 2007 and we’ve been running our No Tanker campaign for a couple years. Our Oil Tankers are Loonie campaign had gone viral attracting press and supporters from around the world, but we’d never met with Enbridge. So there I am, dressed in my only suit, accompanied by a few colleagues finally meeting with the Enbridge CEO and his senior staff in a conference room in the Bentall Tower in Downtown Vancouver.

The meeting was cordial – Patrick Daniel is a charming man and he attempted to assure us that he was on the side of angels by being concerned about global poverty. The initiative he was most proud of was the energy4everyone foundation he had set up to help disadvantaged communities in Africa. We told him we shared his concerns for the world’s disadvantaged, but didn’t think the best way to improve their circumstances was to take some of the world’s dirtiest oil, jam a pipeline through unceded First Nations lands, ship it across a thousand streams and put it on oil tankers bigger than the Exxon Valdez for shipment through some of the most dangerous waters for ships – let alone massive tankers.

After sharing stories about working in the developing world, Patrick Daniel assured us Enbridge would only operate in communities where it was welcome. We were happy to hear this, but rightly took it as a rhetorical comment – not as an enforceable commitment.

Just before the meeting ended I addressed the elephant in the room, which we had only been circling around until then. I told him, “You are aware, aren’t you, that Enbridge has to get approvals from the feds and province, Enbridge has to get all the affected communities and First Nations on side, and then Enbridge has to build approximately 1,173 km of pipeline through some of the most difficult terrain ever attempted. In contrast, all we, the opposition, have to do is to stop one inch.”

His response was illuminating. CEO Daniel told me, “I’m painfully aware of that.”

The Enbridge CEO may have said he understood his massive problem, but his companies subsequent missteps in engaging First Nations and affected communities throughout British Columbia illustrated he didn’t.

The Harper government’s aggressive promotion of Enbridge’s west coast pipeline oil tanker dreams, their attacks on critics, and the laissez-faire approach to talking to affected First Nations shows they too underestimate their massive one-inch problem.

But Enbridge and Harper are not alone in their misunderstanding. The media is also generally confused about the impact unresolved First Nations’ rights and title will have on the likelihood of Enbridge actually going forward.

If you’ve been following the media you’re probably perplexed by the dueling experts on rights and title impacts on the prospects for a new west coast oil port. Some experts are quoted arguing First Nations’ opposition dooms Enbridge’s prospects for ever building their controversial oil tanker and pipeline project, while other experts emphatically claim First Nations don’t have a veto.

Surprisingly, both views are right – but they miss the point. Experts arguing First Nations don’t have a veto are theoretically correct based on the black letter law of the court decisions.  It’s true that IF the Crown fulfills all its duties, First Nations do not have an outright veto over projects on unceded land. But, legal and political battles don’t play out in the abstract according to what’s written on paper – they are fought in the real world.

What the “no veto” experts are overlooking is that – unfortunately for both Enbridge and Harper – the Crown hasn’t fulfilled all its duties to First Nations. Not even close.

In fact, despite all the posturing and grand statements, the federal government’s current process to consult and accommodate affected First Nations about Enbridge’s proposal hasn’t even really begun. The 2004 Haida ruling – the same case that legal experts cite to support their “no veto” argument – also states clearly “the Crown can’t delegate its duty to consult.” But that’s exactly what the National Energy Board (NEB) has done with Enbridge and all other energy megaprojects. The NEB punts consultation with affected First Nations to the proponent, in this case Enbridge, even though the courts have said this doesn’t satisfy the Crown’s constitutional duty to First Nations.

The NEB’s policy of delegating consultation to proponents could be fatal to Enbridge’s proposal, but what most pro-Enbridge pundits are also overlooking is that for Harper, the stakes are even higher. What’s at stake is not only Enbridge’s proposal, but the role of the NEB in all decisions on unceded land in B.C. and the north. Losing a challenge against an Enbridge approval not only jeopardizes the Northern Gateway project, it could kibosh all future approvals on unceded lands in B.C. and the north – including the Arctic – where an oil and gas feeding frenzy has Harper and Big Oils’ mouths watering.

This potential legal threat is not hypothetical. Three First Nations have already filed lawsuits against the NEB’s conditional approval and rumour has it seven more are poised to go to court if Harper’s cabinet gives Enbridge a thumbs up. A loss in the courts could have devastating impacts that could shut down oil and gas plays on many new frontiers Ottawa and Big oil are counting on.

This is why it‘s risky for Harper to force this unwanted project on unwilling First Nations. It could blow up in his face.

But what does this have to do with an angry inch?

When former Enbridge CEO Daniel acknowledged the company’s massive one-inch problem, I thought he understood rights and title and the massive nature of the risk he faced. It appears as though I gave him too much credit.

Most media pundits are unclear about the nature of rights and title. Rights and title are not held by groups of First Nations or by First Nation lobbying organizations – they’re held by individual First Nations that have a historic connection to a specific piece of territory.

So despite dueling opinions of various experts, the practical reality is that Harper and Enbridge’s angry inch problem will persist even if a few First Nations sign tentative agreements. When Enbridge dubiously claims they have support from dozens of First Nations, it might make for a nice albeit misleading sound bite, but it significantly distorts the biggest risk facing the project.

In fact, the wall of First Nations publicly committed to doing everything necessary to stop the Enbridge oil tanker and pipeline proposal looks more like a Great Green Wall of opposition than an angry inch. But legally, just one committed, persistent First Nation with a strong connection to even as small an area as one inch of the pipeline route and willing to fight to the end can stop Enbridge altogether. A pipeline with even one inch of land it cannot pass is a pipeline that will never be built.

Regardless of the federal cabinet's decision, Harper’s massive angry inch problem dooms Enbridge. And if played too aggressively, it possibly dooms future oil and gas plays throughout British Columbia, the north and the arctic.

This is what’s really at stake. Only time will tell if an angry inch will kibosh a 1,173 km pipeline. But Harper best be careful so he doesn’t make the same mistake the former Enbridge CEO made oh-so-many years ago.

frank lehmann says:
Jun 11, 2014 03:50 PM

hope our great leader harper is going to read this article, it might help to enlighten him somewhat!

alan goldin says:
Jun 25, 2014 07:50 AM

don't count on it..

E says:
Jun 25, 2014 11:53 PM

He can read? I didn't think he was that intelligent

Jade Santana says:
Jun 26, 2014 10:04 AM

If he reads it, he might have it censored.

Alda Berneaud-daRosa says:
Jun 25, 2014 09:02 AM

This article must be published in all major newspapers across the country.

Alice says:
Jun 25, 2014 10:21 AM

The photo... I don't think it's anger... I think it's guilt

Ron Osborne says:
Jun 25, 2014 09:26 PM

Mr Harper doesn,t harbour such things as guilt The Prime Minister probably could care less about what and of us mere citizens think

David W says:
Jun 25, 2014 12:29 PM

This is a truly excellent contribution to the whole debate. The pipeline proponents have only their own arrogance to blame for failing to engage in honest, respectful negotiations with First Nations.

David Enevoldsen says:
Jun 25, 2014 12:48 PM

The hideous thing about this proposal and what I haven't seen so far in the article or comments is that it would contribute enormous amounts of C02 to the atmosphere as it takes large amounts of natural gas just to extract the dirty oil out of this sand. Canada already has toxic lakes of process water visible via satellite from this extraction process...how much more of this would result from a full scale extraction? This whole project and others like it in South America must be stopped at all costs if we are to have even a slight hope of reversing our reckless headlong rush into climate catastrophe.

sharon says:
Jun 25, 2014 06:35 PM

Yes, David - Canada has an ugly reputation around the world in 'resource extraction'.Harper whole-heartedly supports it, as well as foreign investment in Canada's 'resources'. Even our Crown Parks are mined. This has to stop, not only regarding climate change, but for biodiversity as well. A noble statesman, Harper is not.

Erin says:
Jun 25, 2014 01:18 PM

Interesting article and thanks for your reflections on the meeting from 2007.

I was particularly interested in the confusion regarding First Nations' veto/no-veto debate. I would like to see a short non-partisan video or infographic describing this quandry. Something snappy, catchy, and easily understood by non-experts! Maybe in the RSA Animate or Minute Earth style, or alternatively with a few well-informed folks talking from both/multiple sides of the issue. I think it would help to show Canadians why this issue of First Nations title/veto is a murky area - especially in BC with unceded land, in contrast with legal jurisdiction in other parts of Canada.

Thanks, and keep up the good work.

Crystal P. says:
Jun 25, 2014 02:34 PM

6 inches forward, 5 inches back.

Jo Macleod says:
Jun 25, 2014 02:51 PM

Yes, David Enevoldsen's remark above is very appropriate, something many of us have missed.
"contribute enormous amounts of C02 to the atmosphere as it takes large amounts of natural gas just to extract the dirty oil out of this sand" - not only polluting the waters but also the air.....

Jam says:
Jun 25, 2014 03:52 PM

Harper just has to tinker with the constition to tidy up any pesky veto powers the First Nations people have. I have zero doubts this will be the next move to page the way if indeed it does come up as a roadblock. Don't underestimate Harper's willingness to flout public opinion on the catastrophic moves he's clearly shown an interest in making (and largely getting away with) while he's still got a majority government. He is truly the architect behind some previously unthinkable legislation--I really can't believe he's allowed to continue eroding this once great nation's reputation.

T Bear says:
Jun 25, 2014 05:56 PM

Harper is a greedy lousy leader who has no care for Canada, only that he milks her for all she's worth while he is in power. Get rid of him, vote Liberal so that Harper has to face losing to Justin Trudeau. It would be the icing on the cake and no pipeline would be built!

T Bear says:
Jun 25, 2014 05:58 PM

Harper is a greedy lousy leader who has no care for Canada, only that he milks her for all she's worth while he is in power. Get rid of him, vote Liberal so that Harper has to face losing to Justin Trudeau. It would be the icing on the cake and no pipeline would be built!

Terry says:
Jun 25, 2014 06:11 PM

That is one of the many reasons Harper must go.

Janet C. says:
Jun 25, 2014 06:48 PM

Jan you have said it! I am completely with you and David Enevoldsen's comments.

Eugene Hrushowy says:
Jun 25, 2014 07:54 PM

Has anybody looked at a map to be quite certain that the pipeline can meander through BC Crown/Park lands bypassing all First Nation lands inorder to reach the coast?

Ann says:
Jun 25, 2014 08:41 PM

The above is only too true - I would advise all to log into www.harperwatch.ca to see just what we are up against. We must work to stand firm on this pipeline issue to show Harper that "enough is enough" and we want our democratic rights to decide the future of our province and our country.

jay says:
Jun 27, 2014 12:07 AM

When we play chess and there is a lot of attention drawn to one side of the board we are in danger of an unnoticed inititve on the other, protect our rights and freedoms, and keep your eyes open, see the whole board, possibly the publicity this has was an accedent on the part of harper and friends, still its good to be aware of the other moves they may be more "silently" advancing... Just a thought

jay says:
Jun 27, 2014 12:08 AM

When we play chess and there is a lot of attention drawn to one side of the board we are in danger of an unnoticed inititve on the other, protect our rights and freedoms, and keep your eyes open, see the whole board, possibly the publicity this has was an accedent on the part of harper and friends, still its good to be aware of the other moves they may be more "silently" advancing... Just a thought

Marion Cumming says:
Jun 25, 2014 11:06 PM

It will be interesting to see what effect the Supreme Court's decision relating to First Nations land title could have on the Northern Gateway proposal.

Onni Milne says:
Jun 26, 2014 11:40 AM

I thank the Supreme Court of Canada with all my heart and soul for their outstanding decision confirming First Nation title and rights to territory outside their reserve area. Stephen Harper and Christy Clark can no longer rule without consent. Telling First Nations what you plan to do and how you plan to do it is not consultation and definitely does not include Free, Prior and Informed Consent from First Nations.

Diane Babcock says:
Jun 26, 2014 12:27 PM

If this refers to the movie Hedwig and the Angry Inch the only similarity I can see is the impotence of Harper and Enbridge.

Marilyn Glasgow says:
Jun 28, 2014 07:14 AM

Very good article. I had no idea about the "angry inch". Keep up the good work, Dogwood. We can't allow Harper to continue to run roughshod over this country and its citizens. He's done enough damage already. There is a list.

Richard says:
Jul 05, 2014 03:30 PM

Anyone opposing this pipeline should be supporting the alternative by sourcing their electricity from bullfrog or a company like it.

RGC-11 says:
Jul 16, 2014 06:51 PM

What does Enbridge do in the event of a forest fire affecting the pipeline?

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