Court Challenge

The Chippewas of the Thames First Nation are appealing the National Energy Board’s approval of Line 9, citing a lack of consultation with the community.

Section 35 of the Canadian Constitution Act states:

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

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

Section 35 falls outside of the Charter of Rights and Freedoms, and it begins Part II of the constitution. This allows Section 35 to be exempt from the “notwithstanding clause” that applies to the Charter. In other words, the federal government cannot override Aboriginal rights.

It is important to make note of the following:

  • Section 35 recognizes Aboriginal rights, but did not create them—Aboriginal rights have existed before Section 35.
  • Section 35 of The Constitution Act, 1982 recognizes and affirms existing Aboriginal rights, but does not define them.

What Aboriginal rights include has been discussed and debated with increasing frequency over the past decade. They have been defined over time through Supreme Court cases such as R. v. Calder and R. v. Sparrow.

The COTTFN now have the opportunity to further define Aboriginal rights in relation to pipeline projects. A favorable outcome for COTTFN could have enormous impacts on Indigenous communities across Canada who are fighting fossil fuel transportation networks such as Northern Gateway, Trans Mountain and Energy East.

“Line 9 has been flowing light crude oil through Chippewas of the Thames traditional territory for 40 years without our consent. It is time for industry and governments to honour the treaties and wampum belt agreements. Indigenous nations and all residents of Canada are responsible for the safety of our Mother Earth!”

– Myeengun Henry, Chippewas of the Thames First Nation

Line 9 Communities stands in full support with the COTTFN Supreme Court Challenge. Updates will be posted as they become available.