First Nation seeks declaration of Aboriginal Title in challenge to Northern Gateway Pipeline

HARTLEY BAY, BRITISH COLUMBIA–(Marketwired – July 14, 2014) – The Gitga’at First Nation has launched a court challenge of the federal cabinet’s decision to approve the Enbridge Northern Gateway pipeline and tankers project, and is seeking a declaration of Aboriginal title that could result in the approval being set aside.

The challenge is part of a legal strategy prompted by last month’s Supreme Court of Canada ruling, which granted Aboriginal title to the Tsilhqot’in Nation.

Drawing just three circles on a map of their ancestral territory, each representing a distinct land and marine economic area, the Gitga’at First Nation has filed a Motion for Leave to apply for judicial review of the federal government’s approval of the project, and is seeking a declaration of Aboriginal title that would affirm the nation’s right to exclusive use and occupation of the three distinct areas where Enbridge’s tankers would pose the most persistent and significant threats to the Gitga’at people.

“As a result of the Joint Review Panel process, the federal government now has the sworn and unchallenged evidence showing that the Gitga’at First Nation has Aboriginal title over three specific land and marine economic areas critical to the Gitga’at economy and way of life,” said Michael Lee Ross, lawyer for the Gitga’at First Nation. “The evidence amply suffices, legally speaking,” he added, “to require the federal government finally to recognize and respect the Gitga’at people’s prior and ancestral rights.”

Without giving up their claim to Aboriginal title to the entirety of their territory, the Gitga’at are strategically focusing their claim on the three areas, which represent a fraction of Gitga’at territory, but were the key areas the Gitga’at focused on when presenting sworn community and expert evidence to the Joint Review Panel. Although it was open to the federal government to do so, it declined to challenge the evidence.

The evidence shows that prior to the assertion of British sovereignty, the Gitga’at exclusively occupied and used the three regions in a regular and intense fashion that has continued into modern times, and likely meets the Supreme Court of Canada’s recently clarified test for Aboriginal title.

The Gitga’at argue that the federal cabinet’s approval and the regulatory process underpinning it unjustifiably infringe the Gitga’at First Nation’s Aboriginal title and that the Gitga’at right to exclusive control means that the waters and routes of marine travel through the core of Gitga’at Territory are Gitga’at’s to use, and it is for the Gitga’at to collectively decide what uses their lands, waters and resources can be put to.

According to the Gitga’at, any government decision that results in project-related tankers passing through Gitga’at title territory with little or no economic benefit to the Gitga’at and contrary to their own economic development plans is an infringement of their title.

Gitga’at territory encompasses approximately 7,500 square kilometres of land and water, including a major portion of Douglas Channel, which is the heart of Gitga’at territory. The Douglas Channel is the proposed route for tankers connected to the Enbridge Northern Gateway pipeline and KLNG/LNG projects.

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