Enbridge application to the National Energy Board: an Illegal Development on Kanehsatà:ke Mohawk Territory

by Ellen Gabriel

(Ellen Gabriel at the Protect Mother Earth for Present and Future Generations event on Nov. 16 2013)

November 26, 2013 - Kanehsatà:ke Kanien’kehá:ka (Mohawk Territory) - On this day of the National Energy Board (NEB) hearings for Enbridge Line 9b, it is important to inform and emphasize to the NEB and the public, that no proper consultations were conducted by Enbridge, acting as an agent of the government of Canada on this development.

We identify several core issues which contribute and exacerbate the continuing injustices faced by the Kanien’kehà:ka of Kanehsatà:ke:

• Enbridge is acting as an agent of Canada because Canada has delegated to Enbridge key tasks related to the Crown’s constitutional duty to consult and accommodate

• The government of Canada recognizes only the Mohawk Council of Kanesatake as a representative institution and not the Longhouse – the continuing, unextinguished and legitimate representative institution of the pre-Canadian Kanien’kehá:ka government.

• As a consequence, neither the collective property rights, nor the laws of the Kanien’kehà:ka are recognized by Enbridge or Canada, particularly in relation to the lands, territories and resources of the Kanien’kehà:ka of Kanehsatà:ke

• Kanien’kehà:ka of Kanehsatà:ke demand that Canada and Enbridge initiate immediate discussions with representatives of Kanehsatà:ke, as chosen by the clans under customary law, and cease any and all development until all Crown actors obtain the Free Prior and Informed Consent of the Kanien’kehà:ka of Kanehsatà:ke

All state actors including businesses must uphold the highest standards of human rights and the Rule of Law. As Canada has endorsed the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), this signifies a change in how business is conducted in Canada with Indigenous Peoples.

Article 19 of the UNDRIP states: “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

In Kanehsatà:ke Enbridge has failed its legal and moral obligations to conduct consultations on the reversal of Line9b with all legitimate governments and rights holders within the community. These representative institutions and rights holders include both the Longhouse people and the Mohawk Council of Kanesatake, an institution established pursuant to the Canadian Indian Act. It is imperative that the NEB be notified that the community of Kanehsatà:ke is unaware of any attempts by Enbridge to conduct consultations as required by National Energy Board requirements that developers submit an “Aboriginal Consultation Protocol”.

It is therefore important to state that Kanehsatà:ke vehemently opposes the reversal of Line 9b by Enbridge that will contain Dirty Oil from the Alberta tar sands. We stand in solidarity with the Five First Nations communities whose health and well-being have been directly affected by the tar sands development.

We must emphasize the Rule of Law requires implementation of various Supreme Court of Canada decisions like Sparrow and Delgamuukw, which require consultation and accommodation of “Aboriginal peoples”. More important, Kanien’kehá:ka customary law governs any development impacting our lands, territories and resources and requires the consent of the Kanien’keháka Nation before it can proceed.

These types of land appropriation have caused the dispossession of Indigenous peoples from their lands and territories as they are founded upon discriminatory legal theories of dispossession like the Doctrine of Discovery. These same doctrines have been condemned by various ecumenical organizations, subnational governments and UN Agencies, and most notably by states themselves, for example, in the UNDRIP preamble para. 4, that states:

“… all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust,”

The collective rights of indigenous peoples in Canada are also reflected in the Constitution Act, 1982 which recognizes and protects the inherent rights of “Aboriginal peoples”. Preference for status quo and illegally obtained property rights held by developers over the legitimate legal rights of indigenous peoples to Indigenous lands is no longer acceptable. In particular within Kanehsatà:ke Kanien’kehá:ka (Mohawk) Traditional Territory, in particular Oka Park.

The UN Special Rapporteur on the rights of Indigenous peoples, James Anaya, stated in his July 1, 2013 report to the UN General Assembly “Extractive industries and indigenous peoples1 conclusion para. 83.

“Indigenous individuals and peoples have the right to oppose and actively express opposition to extractive projects promoted by the State or third party business interests. Indigenous peoples should be able to oppose or withhold consent to extractive projects free from reprisals or acts of violence, or from undue pressures to accept or enter into consultations about extractive projects.”

UNSR James Anaya has also emphasized the importance of industries obtaining the Free Prior and Informed Consent of Indigenous peoples as a safeguard to protect the rights of Indigenous peoples from any potential harmful effects and as a vehicle for the implementation of the laws of indigenous peoples, particularly laws relating to development of indigenous lands, territories and resources.

Kanehsatà:ke has been forced to live with effects of the Enbridge pipelines that were constructed on our traditional territory in Oka Park nearly 40 years ago. No royalties have ever been transferred to the Mohawks of Kanehsatà:ke derived from the economic benefits that Enbridge has enjoyed. The issue is indeed complex. We therefore require Enbridge to undertake a dialogue with the community of Kanehsatà:ke and demand from the National Energy Board that they DO NOT grant a permit to Enbridge without the Free Prior and Informed Consent, equitable benefit sharing and a valid environmental assessment of the Kanien’kehá:ka people of Kanehsatà:ke.

Resource extraction must be done sustainably and must not threaten the integrity of the land, nor the quality of life for present and future generations. As Kanien’kehá:ka people, we are obliged by our traditional laws to protect the land from harm for the future generations and All Our Relations.

Skén:nen – In peace

Ellen Gabriel - Indigenous Human Rights Activist

For Kanehsata’kehró:non Protectors of the Land

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Je suis une journaliste indépendante formée par le travail de terrain des luttes alternatives et radicales. J'ai travaillé collectivement durant la dernière année et je me remets à produire seule certains photoreportages d'événements et enregistrements vidéo de conférences. Je suis préoccupéEs par la défense de la terre et de sa biodiversité ainsi que par la protection et la création de modes de vie soutenables tout comme de relations égalitaires entre les humainEs. Je couvre principalement des événements anticolonialistes, féministes et/ou antispécistes. http://www.youtube.com/channel/UCgK0tvTZQbPg43BUa96CmVw http://www.flickr.com/photos/77722734@N08/ (Photo du profil prise par Guillaum Gibault, photographe naturaliste)