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.
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