Six Glaring Issues with the Supreme Court Line 9 Decision

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A Socialist Project e-bulletin .... No. 1466 .... August 11, 2017
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Six Glaring Issues with the Supreme Court Line 9 Decision

David Gray-Donald

On 26 July, the Supreme Court of Canada announced its decision regarding Enbridge’s Line 9 pipeline. The Chippewas of the Thames First Nation, located near London, Ontario, had argued that due process had not been followed in the government approving significant changes to the existing pipeline. The Supreme Court ruled against the Chippewas of the Thames, and in favour of the National Energy Board and, in effect, Enbridge.

From a close reading of the Supreme Court decision, many glaring issues become apparent. Six of them are summarized here.

1. Aboriginal and treaty rights are mentioned by the Supreme Court, but no specific treaties are named or discussed.

Central to this... case is Section 35 of the Canadian Constitution Act of 1982 (the Charter). It’s first point reads:

"35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed."

In the Line 9 case, the Supreme Court mentions "Aboriginal and treaty rights" twenty times, but never once explores which treaties are relevant, what they say, and what they mean for this case. What of the Two Row Wampum, the Treaty of Niagara (1763), the Royal Proclamation (1764), the Longwoods Treaty of 1822, and other treaties the Chippewas of the Thames are party to? If the Court took seriously what Section 35 represents, instead of just taking the simplified text of Section 35, and really explored it, this would require an exploration of Indigenous understanding of the treaties, and thereby of "Aboriginal and treaty rights." However, the Supreme Court continues to rely on precedent from other Section 35 cases, which are based on completely different treaties (or lack of treaty).

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