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.

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