12 January 2012

Re: the Prime Minister’s Support of Enbridge’s Northern Gateway Pipeline


A recent question for debate is whether Prime Minister Stephen Harper and his government have overstepped their authority in their promotion of Enbridge’s proposed Northern Gateway Pipeline while the project is before the Joint Review Panel. The case for saying they have is debatable. Although reasonable people with reasonable arguments say they have (here), other reasonable people with reasonable arguments say they haven’t (here).

But there is a similar question which should be raised and discussed, namely, whether the Prime Minister and his government have, in promoting Enbridge’s pipeline, offended the honour of the Crown with respect to the constitutional duties owed to Aboriginal peoples, who would have no choice but to live with risks of Enbridge’s pipeline and the associated oil tankers plying the waters of Douglas Channel and beyond and, as the risks materialize, to endure them as best they can.

In the process of coming to an ultimate decision on whether to approve Enbridge’s project, the federal government has a duty to consult each of the First Nations potentially adversely affected by it. The government’s duty includes a duty to consult in good faith, which in turn includes a duty to proceed with an open mind, a mind not closed to the possibility that the honour of the Crown and, by implication, Canada’s constitution may require it to reject Enbridge’s proposal.

Hence the question: By their promotion of Enbridge’s project, have the Prime Minister and his government offended the honour of the Crown vis-à-vis Aboriginal peoples?  From a legal perspective, the case for saying they have is far less debatable than the case for saying they have overstepped their authority in regard to the Joint Review Panel process.