The legal action by the Lheidli T'enneh First Nation against Enbridge could change the landscape of Canadian law. It could change Canada's physical landscape as well.
The LTFN has filed a petition in Prince George court asking for a trio of injunctions that would, if the court finds in their favour, shut off the natural gas flowing through two pipelines across the local territory, and fix the damage caused.
It would also force the company to dig them up and move them to the territory of a First Nation willing to have them. (Almost all land in northern B.C. is someone's traditional territory.)
All this was a response to a massive explosion of an Enbridge natural gas pipeline only 500 metres from the homes of the main LTFN residential community about 15 kms northeast of Prince George.
The blast occurred on Oct. 9 and, in the First Nation's view, exposed the company's lack of emergency response, the company's disregard of the First Nation as a primary point of contact for any activities (repairing the pipe, starting the gas back up, etc.) on their land, and the company's inability to assure anyone's public safety since the explosion.
"No matter what the ruling, the case will give further clarity by the court as to what Aboriginal title means in actual terms. The fact there is no treaty or formal occupancy agreement between the LTFN and any government asserting the right to govern (British Columbia, Canada, etc.) makes for a spirited legal argument in the making, one with Supreme Court of Canada possibilities similar to the groundbreaking William Case (aka Tsilhqot'in Case) which rendered an historic judgment in 2014.
Here is the basic anatomy of this lawsuit, in the words of LTFN Chief Dominic Frederick and their legal specialist Malcolm Macpherson of Clark Wilson LLP.
Macpherson outlined the beginnings of the lawsuit, which trace back to the beginnings of human occupancy of this area.
"The Lheidli T'enneh have existed as a distinct Indigenous people with a common shared territory, and have exclusive ownership, occupancy, and use of its territory at and prior to the contact with Europeans and at the date over which sovereignty was asserted over British Columbia in or about 1846, which is subject to Aboriginal rights and title recognized and affirmed by Section 35 of the Constitution Act, 1982. The Lheidli T'enneh territory was never extinguished by way of treaty or other measure, and remains unceded," he said.
Macpherson added the lawsuit was filed "on the basis of nuisance, negligence and trespass. The pipeline, the explosion, the repairs, and the return to service of the pipeline are, and continue to be, an unreasonable interference with the use and enjoyment of the Lheidli T'enneh's proprietary interests, and as such constitute nuisance.
"The defendants owed and continue to owe a duty of care to the Lheidli T'enneh to exercise such reasonable care as required by the construction, the operation, and the maintenance of a natural gas pipeline across British Columbia, and on Lheidli T'enneh territory and reserves. (Those actions) greatly impacts the Aboriginal rights and title of the Lheidli T'enneh, and the defendants have failed to minimize those impacts as required by law."
Enbridge may choose to sit down with the LTFN out of court and come to an arrangement. Their two pipelines through this area deliver an estimated 80 per cent of the province's home heating, plus many other uses of natural gas. Some is even delivered from these pipes to customers in Washington State. Shutting it off would be, at minimum, an inconvenience to millions of people.
However, said Frederick and Macpherson, Enbridge and two federal agencies (the Transportation Safety Board and the National Energy Board) contend they do not know what caused the enormous explosion and intense fire.
It was so violent it shook houses kilometres away, and glass shards rained from the sky as the heat glazed the dirt and spewed it through the air.
The affected burn zone measured about 5.2 hectares.
The fireball's light was visible from within Prince George's city limits.
About 136 kilometres of this pipeline runs through Lheidli T'enneh territory, plus hundreds more onwards to the south. Every inch of it is a ticking time bomb, said Frederic.
"Every community down along the line is not safe," said the chief. "It's about lives of Canadians and Aboriginal communities that live close to the pipeline. They've repaired one section of the pipeline that exploded, but it remains that the rest of the pipeline still hasn't been securely (verified for safety). It could happen anywhere. It is unfortunate that it happened close to us and traumatized our community members. It's about safety, and I think it is important that Canada and the rest of the Aboriginal community are listening, because they need to be safe, too. We don't want this to happen to anybody ever again. It's not just about us, it is about everybody."
Natural gas to the homes and businesses of millions of people versus the imminent destruction of any given neighbourhood from Peace-country to America: that is the position in which the court is centred.
Also surrounding this case is the legal question: who has the right to say what happens on the land? Are 1950s-era deals between occupier governments and pipeline companies even real if they did not involve the meaningful partnership of the historic and still abiding territorial culture?
The extended implication, then, is what company at all is operating legitimately on the 4.5 million hectares over which the LTFN have historic domain? If Enbridge needs permission to set foot on local ground, wouldn't Pembina also need the same permission to operate the region's oil pipeline? And the natural gas operations of Fortis and BC Gas? What about Canfor, then, and Lakeland and all the other forestry companies who do the broadest forms of industrial activity on the landbase of this region?
But the proposed Coastal GasLink project has nothing to fear as long as it adheres to its agreements. The LTFN has signed a formal agreement with that project's proponents, showing that they are a government willing to do business with companies willing to dialogue at their table.
"The community takes the position that they (Enbridge in specific and others in general) aren't authorized to be doing what they are doing on the traditional territory," said Macpherson. "The jurisprudence has made it clear, everyone is here to stay. The problem right now is that the Section 35 protected rights are not being respected. The community is not being respected."
He added, "There is always, when parties speak together with respect, a solution for every problem. But at the moment - I mean, it's been four and a half months - Enbridge has taken a business as usual position, and the chief and councillors and community say that is unacceptable."
"Enbridge," said Frederick, "does not seem to recognize that we are Section 35 (of the Canadian Charter Of Rights & Freedoms) rights holders, not mere bystanders or stakeholders. Our Section 35 rights need to be understood. The Supreme Court of Canada gets it, but Enbridge, the National Energy Board and the Transportation Safety Board appear to be oblivious to this reality."
Are there other companies that, in the estimation of chief and council, aren't conducting business properly on the property of Lheidli T'enneh?
"Well, we would like them to decide," Frederick said. "We know who they are, and they know who they are. And they are operating in our territory. We're giving notice."
And if Enbridge refuses to engage with the Lheidli T'enneh and also refuse to take action to stop the gas or remove the pipes?
"We are going to wait for them to respond," Frederick said, "and if they don't respond to our satisfaction then we will move to the next step, in court."
