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Indigenous rights in the context of oil and gas pipelines in Canada: exposing naturalised power structures through a lens of intersectionality

Published online by Cambridge University Press:  22 April 2020

Margot Hurlbert Open the ORCID record for Margot Hurlbert [Opens in a new window]  and
Amber J. Fletcher
Margot Hurlbert*
Affiliation:
Canada Research Chair, Climate Change, Energy and Sustainability Policy, Johnson-Shoyama Graduate School of Public Policy, University of Regina
Amber J. Fletcher
Affiliation:
Associate Professor, University of Regina
*
*Corresponding author. E-mail: margot.hurlbert@uregina.ca
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Abstract

Situated within the larger context of Canadian pipeline decisions, it is argued that pipeline proposals in a geography without pre-existing pipelines are unsuccessful in contrast to proposals repurposing and expanding existing pipelines. The Chippewas of the Thames (the ‘Chippewas’) unsuccessfully opposed Enbridge's expansion, reversal and repurposing to crude oil of the Line 9 pipeline in Ontario, Canada. Analysing the Chippewas’ case within the context of recent oil- and gas-pipeline developments, using a lens of intersectionality focused on identity markers of indigeneity, socio-economic status and geographical location, exposes the naturalised power structures of Canadian law. These structures include the legal institutions of real-property law, Crown ownership of wildlife and fish, implicit ‘standing’ of the economy and assimilation of indigenous rights. Exposing this dichotomy of indigenous rights on paper vs. in practice deepens the consideration of indigenous rights, potentially allowing intersecting oppressions to be addressed.

Keywords

Canadian indigenous rightspipelineshunting, trapping and fishingintersectionality
Type
Article
Information
International Journal of Law in Context , Volume 16 , Issue 1 , March 2020 , pp. 57 - 76
Copyright
Copyright © The Author(s), (2020). Published by Cambridge University Press

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References

AFN (Assembly of First Nations) (n.d.) Honouring Earth. Available at afn.ca (accessed 19 March 2020).Google Scholar
Blackstone, W (1979) Commentaries on the Laws of England, Vol. II. Chicago: University of Chicago Press.Google Scholar
Borrows, J (1994) Constitutional law from a first nation perspective self-government and the Royal Proclamation. UBC Law Review 28, 1–47.Google Scholar
Borrows, J (2010) Drawing Out Law: A Spirit's Guide. Toronto: University of Toronto Press.Google Scholar
Bowleg, L (2008) When Black + lesbian + woman ≠ Black lesbian woman: the methodological challenges of qualitative and quantitative intersectionality research. Sex Roles 59, 312–325.CrossRefGoogle Scholar
CBC News (2017a) Chippewas must pay energy giant's legal bills in lost court battle. 28 July 2017. Available at http://www.cbc.ca/news/canada/london/chippewas-enbridge-court-line-9-legal-fees-1.4224972 (accessed 19 March 2020).Google Scholar
CBC News (2017b) Kinder Morgan to proceed with TransMountain Pipeline expansion pending financing. 26 May 2017. Available at http://www.cbc.ca/news/canada/british-columbia/kinder-morgan-to-proceed-with-trans-mountain-pipeline-expansion-pending-financing-1.4132648 (accessed 19 March 2020).Google Scholar
Cheadle, B (2016) Justin Trudeau halts Northern Gateway, approves Kinder Morgan expansion, Line 3, The Canadian Press. Available at https://globalnews.ca/news/3094856/northern-gateway-pipeline-line-3-approval-announcement/ (accessed 19 March 2020).Google Scholar
Cho, S (2013) Post-intersectionality: the curious reception of intersectionality in legal scholarship. DuBois Review 10, 385–404.Google Scholar
Christie, G (2005) A colonial reading of recent jurisprudence: Sparrow, Delgamuukw and Haida Nation. Windsor Yearbook of Access to Justice 23, 17.Google Scholar
Collins, LM and Murtha, M (2010) Indigenous environmental rights in Canada: the right to conservation implicit in treaty and aboriginal rights to hunt, fish and trap. Alberta Law Review 47, 960–990.Google Scholar
Comack, E (1990/2006) Locating Law: Race/Class/Gender/Sexuality Connections, 2nd edn. Halifax: Fernwood Publishing.Google Scholar
Conaghan, J (2008) Intersectionality and the feminist project in law. In Grabham, Emily et al. (eds), Intersectionality and Beyond: Law, Power and the Politics of Location. Abingdon: Routledge.Google Scholar
Crane, B, Mainville, R and Mason, M (2008) First Nations Governance Law, 2nd edn. Markham: LexisNexis Canada.Google Scholar
Crenshaw, K (1991) Mapping the margins: intersectionality, identity politics, and violence against women of color. Stanford Law Review 43, 1241–1299.CrossRefGoogle Scholar
Crenshaw, K (2011) Postscript. In Lutz, H, Vivar, MTH and Supik, L (eds), Framing Intersectionality: Debates on a Multi-Faceted Concept in Gender Studies. London: Routledge, pp. 221–235.Google Scholar
Davis, A (2015) Intersectionality and international law: recognizing complex identities on the global stage. Harvard Human Rights Journal 28, 205–242.Google Scholar
De Santis, G (2018) Social justice and human rights. In Hurlbert, M (ed.), Pursuing Justice, 2nd edn. Winnipeg: Fernwood Publishing.Google Scholar
Fletcher, A (2018) More than women and men: a framework for gender and intersectionality research on environmental crisis and conflict. In Fröhlich, C et al. (eds), Water Security across the Gender Divide. Cham: Springer International Publishing, pp. 5–58.Google Scholar
Freedman, R and Hansen, S (2009) Aboriginal Rights vs. the Public Interest, Pacific Business & Law Institute Conference, Vancouver, BC, 26–27 February. Available at http://www.scc-csc.ca/cso-dce/2017SCC-CSC40_1_eng.pdf (accessed 6 April 2020).Google Scholar
Gregory, R and Trousdale, W (2009) Compensating aboriginal cultural losses: an alternative approach to assessing environmental damages. Journal of Environmental Management 90, 2469–2479.CrossRefGoogle ScholarPubMed
Harris, A (1990) Race and essentialism in feminist legal theory. Stanford Law Review 42, 581–616.CrossRefGoogle Scholar
Hogg, P (2010) The constitutional basis of aboriginal rights. Lex Electronica 15, 177–196.Google Scholar
hooks, b (1989) Talking Back: Thinking Feminist, Thinking Black. Boston: South End Press.Google Scholar
Hull, A, Bell-Scott, P and Smith, B (1982/2015) All the Women Are White, All the Blacks Are Men, But Some of Us Are Brave: Black Women's Studies, 2nd edn. New York: Feminist Press.Google Scholar
Hurlbert, M (2018) Pursuing Justice. Winnipeg: Fernwood Publishing.Google Scholar
Kaijser, A and Krosnell, A (2014) Climate change through the lens of intersectionality. Environmental Politics 23, 417–433.CrossRefGoogle Scholar
Kleer, O (2012) Aboriginal Law Handbook, 4th edn. Toronto: Thomson Reuters Canada Limited.Google Scholar
Korteweg, L, Gonzalez, I and Guillet, J (2011) The stories are the people and the land: three educators respond to environmental teachings in indigenous children's literature. In Cutter-Mackenzie, A, Payne, PG and Reid, A (eds), Experiencing Environment and Place through Children's Literature. New York: Routledge, pp. 75–94.Google Scholar
Lambrecht, K (2013) Aboriginal Consultation, Environmental Assessment, and Regulatory Review in Canada. Regina: University of Regina Press.Google Scholar
Lutz, H, Vivar, M and Supik, L (2011) Framing Intersectionality: Debates on a Multi-Faceted Concept in Gender Studies. London: Routledge.Google Scholar
McCarthy, S, Cryderman, K and Lewis, J (2017) TransCanada halts pipeline, sparking new regional tensions. The Globe and Mail. Available at https://www.theglobeandmail.com/report-on-business/industry-news/energy-and-resources/transcanada-kills-controversial-energy-east-pipeline-project/article36498370/ (accessed 19 March 2020).Google Scholar
McLachlin, B (2000) The evolution of the law of private obligation: the influence of Justice LaForest. In Johnson, R et al. (eds), Gerard v. La Forest at the Supreme Court of Canada 1985– 1997. Winnipeg: University of Manitoba.Google Scholar
Moosa, C and Tuana, N (2014) Mapping a research agenda concerning gender and climate change: a review of the literature. Hypatia 29, 677–694.CrossRefGoogle Scholar
Moraga, C and Anzaldúa, G (eds) (1981/2015) This Bridge Called My Back: Writings by Radical Women of Color, 4th edn. Albany: SUNY Press.Google Scholar
Morgan, G (2017) Petronas pulls the plug on Canada's Pacific Northwest LNG megaproject. Financial Post. Available at https://business.financialpost.com/commodities/energy/newsalert-pacific-northwest-lng-megaproject-not-going-ahead-2 (accessed 19 March 2020).Google Scholar
Morse, B and Kozak, T (2001) Gathering strength: the government of Canada's response to the final report of the Royal Commission on Aboriginal Peoples. In Blind Spots: An Examination of the Federal Government's Response to the Report of the Royal Commission on Aboriginal Peoples. Ottawa: Aboriginal Rights Coalition, pp. 32–48.Google Scholar
Mufson, S and Eilperin, J (2017) Trump seeks to revive Dakota Access, Keystone XL oil pipelines. The Washington Post. Available at https://www.washingtonpost.com/news/energy-environment/wp/2017/01/24/trump-gives-green-light-to-dakota-access-keystone-xl-oil-pipelines/ (accessed 19 March 2020).Google Scholar
Phoenix, A (2011) Psychosocial intersections: contextualising the accounts of adults who grew up in visibly ethnically different households. In Lutz, H, Vivar, MTH and Supik, L (eds), Framing Intersectionality: Debates on a Multi-Faceted Concept in Gender Studies. London: Routledge, pp. 137–154.Google Scholar
Roberts, D and Jesudason, S (2013) Movement intersectionality: the case of race, gender, disability and genetic technologies. Du Bois Review 10, 113–328.CrossRefGoogle Scholar
Slattery, B (2000) Making sense of aboriginal and treaty rights. Canadian Bar Review 79, 196–224.Google Scholar
Slicer, D (2015) More joy. Ethics and the Environment 20, 1–23.CrossRefGoogle Scholar
Smooth, WG (2013) Intersectionality from theoretical framework to policy intervention. In Wilson, AR (ed.), Situating Intersectionality. London: Palgrave McMillan, pp. 11–41.CrossRefGoogle Scholar