By MATTHEW EVANGELISTA
On Nov. 30 an aboriginal community took their fight to the Supreme Court of Canada saying The National Energy Board does not have the right to decide how First Nations land is used.
For 40 years the Canadian government has used The National Energy Board (NEB) to get around opening discussion with First Nations on the topic of what the government can do on their land concerning pipelines and resource collection. According to Myeengun Henry, Conestoga College’s Aboriginal Services manager and the traditional counsellor from Chippewas of the Thames, this land is traditional territory granted to the First Nations by the Crown, meaning Canada does not and never has had claim to any land that pipelines are built on.
One of the main disputes is the Line 9 pipeline that runs from Sarnia to Montreal. It is operated by Enbridge, the largest transporter of crude oil in Canada.
“They put in the pipeline 40 years ago. They never talked to us and it’s our traditional territory … We asked the Canadian government to sit down with us and talk about it and they didn’t want to do that. What they did do was build a third party (NEB) to make those decisions, and so they allowed Enbridge to run this oil.”
“The NEB isn’t the Canadian government, they can’t negotiate with us, and that negotiation (with the government of Canada) didn’t take place. When we took it to the Federal Court of Appeals we ultimately lost. We only had one out of three judges approve the case. They’ve gotten billions of dollars for 40 years and every municipality was paid tax dollars except for us, and it’s our traditional territory,” he said.
According to Henry, not only are pipeline carriers trespassing by running pipelines through First Nation land, but they’re doing it for their own profit. As Enbridge is only a carrier, it’s the oil companies making the bulk of the money. However, unlike North Dakota, the Canadian pipelines have been finished for almost a generation and the debate is now why these pipelines are allowed to endanger First Nations land without permission or compensation.
Section 35 of the Constitutional Act of Canada, put forward by Delbert Riley in 1982, the previous chief of the National Indian Brotherhood and monthly visitor to Conestoga College, states:
“The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. … For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.”
Another section of the charter, section 25, is designed to shield the rights and freedoms of the First Nations people from manipulation. Manipulation would include establishing a system like The National Energy Board, which although has other uses, has primarily been used to step around negotiations regarding territory claims.
The Canadian First Nations is trying to avoid a situation like North Dakota, where protesters are trying to prevent the Dakota Access Pipeline from being constructed, by exhausting every legal route given to them. They are also prepared to defend their land if needed. It’s this mindset that has attracted Riley, a historical legal veteran for First Nations’ rights in Canada.
Riley was born to the Chippewas of the Thames and sent to a residential school for five years where he was starved and abused, vividly recalling sneaking out at night with other kids to dig through garbage cans for food. When he was released he worked odd jobs, finally saving enough up for his first car at 14 years of age. He drove it to Niagara Falls to celebrate. Riley made sure to never forget his past nor the Indian Act, even after moving to Detroit. He constantly questioned the government and read any book he could get his hands on.
In the U.S. he closely followed the treatment of blacks.
“You know it was a time they would send the dogs on them for protesting, separate water fountains; everything was segregated. But I was watching that, reading why they were standing up, and it got me thinking about up here and how we’re sort of in the same situation. I knew it was wrong: no jobs and everybody pushed into concentration camps (what Riley calls the reserves); nobody had education. All we could do was accept the racism.”
Riley saw black Americans fighting back for their rights and it inspired him. He watched the movement grow, watched segregation at its peak finally break and dwindle. It was then when he made himself a promise.
“I told myself if I ever had the chance to go back home I would begin the fight, and it was sort of a pipe dream back then, it wouldn’t happen, but I had an accident back west and decided to come home that summer.”
This experience gave him a view on racism which developed along with his legal skills when he moved back to Canada with his uncle.
“The racism was against the blacks, they never noticed us. It shows the irony of racism, it shouldn’t even be there. It shouldn’t be used to put down anyone, but it’s a crazy example when you have an Indian reserve in the city of Detroit and everybody has jobs (in contrast to the ghettos of Canadian reserves),” said Riley.
After working at the Union of Ontario Indians he became an expert in land claims and Indian rights. Using this information he became a prominent legal activist for the First Nations of Canada, following a personal creed that even if the government conceded and wanted to negotiate a resolution to his cases outside of court he would refuse, and make sure the courts officially recognized whatever infringement he had found the Canadian government perpetrating toward First Nations people.
This creed and mindset helped him pioneer Section 35 in the Charter of Rights and Freedoms. It was these court cases and their impact which prompted the chiefs of Canada to ask Riley to run for their leadership. He lost the election, but was ready to put in the legal work for their cases, which he believes was the best outcome for him at the time.
“I was organized; I got people working towards things,” he said.
The fact that the pipeline controversy ended up in court is of no surprise to Riley considering his history dealing with the government and corporations.
“They always like to throw you against a body that isn’t human because it doesn’t have a conscience,” he said.
“The feds are fighting against us, of course, but at the same time they have a mutual obligation to protect our rights. Even if we lose we still have our rights. We do everything by agreement, and this should’ve never happened in the first place.”
Riley’s dedication to getting work done instead of covering up mistakes has led him to personally reject the government’s compensation package for residential school survivors, which pays out a minimum of $10,000.
“I don’t want their money. I want my story to get out to the world.”
The Supreme Court hearing took place on Nov. 30, but it will take up to six months for a verdict to be announced. Henry personally set up tents on Parliament Hill and gave updates on the proceedings as they happened. Prior to the court appeal, Henry pointed toward the staff sitting in his office with pride and said:
“We’re going to walk in with that eagle staff and place it next to their flag, and that’s how we’re going to start this process.”