Coastal First Nations slam senators, say upper house doesn't have 'legitimacy' to kill tanker ban

With some in the Senate angling to end the federal Liberal government's B.C. oil tanker ban bill, some coastal First Nations are slamming "unelected" senators for even thinking about killing legislation that was promised by the prime minister in the last election.

Historically, the upper house has deferred to legislation that implements an election promise

Chief Marilyn Slett pauses for a moment during a news conference in Vancouver, Wednesday, Oct. 10, 2018. Slett, the president of the Coastal First Nations, a group of pro-ban Indigenous advocates, says senators should pass Bill C-48, the northern B.C. oil tanker ban bill. (Jonathan Hayward/Canadian Press)

With some in the Senate angling to end the federal Liberal government's B.C. oil tanker ban bill, some coastal First Nations are slamming "unelected" senators for even thinking about killing legislation that was promised by the prime minister in the last election.

Historically, the upper house has shown some deference to legislation that implements a government's election promise — but the Senate's transport committee deadlocked over C-48, the northern B.C. oil tanker ban bill, last week.

The committee's vote on whether to recommend the bill for passage ended in a tie, meaning the recommendation failed and the bill is now in legislative limbo.

In a letter to senators sent Wednesday, Chief Marilyn Slett — president of the Coastal First Nations, a group of pro-ban Indigenous advocates — said senators should step aside in the face of legislation overwhelmingly approved by the democratically elected House of Commons (with Liberal, Green, NDP and Bloc Québécois support).

"We are asking you in this letter to abide by the wishes of the electorate and, moreover, to respect your own traditions and practices as an appointed chamber. Please defer to the will of the people and pass into law the oil tanker ban," said Slett, chief of the Heiltsuk Nation.

"We don't agree that senators have a democratic mandate, and therefore the legitimacy, to kill this bill."

We don't agree that senators have a democratic mandate, and therefore the legitimacy, to kill this bill.- Chief Marilyn Slett

The deadlocked vote was championed by Conservative senators who view the legislation as an affront to Alberta's oilpatch, but the government says the legislation is necessary to protect the pristine Great Bear rainforest and sensitive waterways from the threat of an oil spill.

Tanker ban supporters worry that a spill of a crude oil product in these waters would threaten the viability of a diverse fishing industry that sustains well over 1,000 jobs in the area, from the fisheries themselves to processing plants along the region's shores.

While not explicitly written into the Liberal government's 2015 platform, then-third party leader Justin Trudeau vowed to prevent oil tankers from docking at ports along the northern B.C. coast when unveiling his plan for the environment at a Vancouver-area event in June, 2015.

An oil tanker anchors at the terminus to the Trans Mountain pipeline in Burnaby, B.C. TMX's shallow port can’t accommodate modern supertankers. (Chris Corday/CBC)

The promise followed his steadfast opposition to Enbridge's now-defunct Northern Gateway oil pipeline project, which would have carried oil from Alberta to Kitimat, B.C. for export to markets abroad.

Shortly after the election, the prime minister's mandate letter for Transport Minister Marc Garneau included a command to introduce legislation on the matter in short order.

The bill in question would ban tankers capable of carrying more than 12,500 metric tons of oil from an area that stretches from the northern tip of Vancouver Island to the Alaska border — doing away for good with projects like Northern Gateway and the Indigenous-led Eagle Spirit proposal.

The legislation formalizes a similar, voluntary ban that has been in place in the region for the past 30 years.

While the committee voted not to proceed with the bill, the legislation could still be salvaged by other Independent senators in the upper house — a group made up largely of Trudeau appointees who often vote along government lines — at the third reading stage of the legislative process.

At that point, amendments could still be made to the legislation — including one floated by Independent Alberta Sen. Paula Simons (who sided with the Tories to vote down the bill at committee) which would carve out corridors through the waters in question for oil transportation.

But Slett warned in her letter that if the bill is not passed as originally written, the upper house would be creating a dangerous precedent.

"Thank goodness that [committee] decision isn't final, and that the full Senate can overturn it — a course of action that we urge you to take. If, however, the full Senate disagrees, then Coastal First Nations — and other Canadians — will be left wondering whether promises made during an election campaign mean anything at all. Does this mean that the promises our democratically elected leaders make during the next election must first be vetted with the unelected Senate?" Slett wrote.

"At the ballot box, First Nations like our own have at least had the opportunity to choose and defeat MPs through the electoral process. But we can't replace appointed Senators."

The House of Commons has passed Prime Minister Justin Trudeau's promised bill banning oil tanker traffic along a stretch of the northern B.C. coast. It is now before the Senate. (Jonathan Hayward/Canadian Press)

In the United Kingdom, the Salisbury Convention — adopted after a series of spats between Liberal and Labour governments and the Conservative-dominated House of Lords — stipulates that Lords will not stand in the way of government bills passing through the upper house when they deal with the content of an election platform or manifesto.

Canada's Senate, like its British equivalent, has taken a similar stance by rarely killing government bills.

But while Slett and some of the bill's other supporters say the Senate doesn't have the "legitimacy" to kill the bill, the Senate is actually well within its constitutional authority to defeat government legislation, given that it is a co-equal chamber of Parliament.

While it cannot introduce "money bills" — legislation that calls for government outlays of any sort — the Senate enjoys largely the same legislative powers as the Commons.

Moreover, there is no unanimity in B.C. Indigenous circles — and a competing group of First Nations and Métis peoples have lined up on the other side of the debate to advocate for Bill C-48's demise.

Eva Clayton is the president of the Nisga'a Lisims Government, a First Nations territory that has signed a modern comprehensive treaty agreement with Canada. She is threatening legal action if the government proceeds with a ban that would affect coastal waters covered by their treaty agreement.

"We aspire to become a prosperous and self-sustaining nation that can provide meaningful economic opportunities for our people," Clayton said.

"Our future prosperity and the ability of our people to enjoy a better quality of life requires the creation of an economic base. This legislation is not based on scientific evidence, does nothing to protect sensitive ecosystems on the West Coast and represents an arbitrary choice of one coastline over others."

Chief Roy Jones Jr. of the National Coalition of Chiefs — a group that supports energy projects as a solution to rampant poverty on First Nations reserves — said the federal Liberal government is "arbitrarily denying Indigenous communities ... investments" by curtailing development through the northern reaches of the province.

"We're trying to lessen our dependency on federal [welfare] dollars. Bill C-48 will just set us back," Jones said.

Calvin Helin, a member of the Lax Kw'alaams First Nation near Prince Rupert, B.C. and an executive with the Eagle Spirit pipeline project, said "elites" from Central Canada are ignoring the pleas of pro-pipeline Indigenous communities who see this sort of development as a solution to unemployment rates as high as 80 per cent, and living standards on a par with sub-Saharan Africa.

The proposed route for the Eagle Spirit Energy Pipeline would run about 1,562 kilometres from Fort McMurray to a terminal at either Grassy Point, B.C. or Hyder, Alaska. (Eagle Spirit Energy)

Helin said Ottawa brought about this proposed oil tanker ban in part because it is kowtowing to self-described anti-pipeline First Nations leaders who are "on the payroll of environmental groups."

(The Coastal First Nations group is funded in by part by grants from environmental groups.)

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John Paul Tasker

Senior writer

J.P. Tasker is a journalist in CBC's parliamentary bureau who reports for digital, radio and television. He is also a regular panellist on CBC News Network's Power & Politics. He covers the Conservative Party, Canada-U.S. relations, Crown-Indigenous affairs, climate change, health policy and the Senate. You can send story ideas and tips to J.P. at john.tasker@cbc.ca.