Freight transport, oil spills, and the James Bay Treaty No. 9 Agreement
In the early hours of Sunday, February 15, 2015, my community of Mattagami First Nation (a signatory to the 1905 James Bay Treaty No. 9) bore witness to a CN Rail freight train derailment involving 29 newer-style tankers, known as CPC-1232, carrying crude oil.
The tankers, according to the Transportation Safety Board (TSB), were supposed to be an upgrade in the standards for carrying crude oil and other flammable liquids. Suffice it to say, of the 29 derailed tankers, 19 were breached, seven caught fire igniting 14 more tankers.
It took six days to extinguish all the fires. In the end, the TSB estimated that more than 1 million litres of crude oil product was released into the ground or atmosphere.
Because the derailment took place on our traditional territory and ancestral homelands we share with Flying Post First Nation, our Indigenous laws, existing since time immemorial, automatically became triggered.
These laws, which pre-date Treaty No. 9, contain strong responsibilities to future generations, water/plant/animal life and natural resources. Elders saw the derailment as a serious breach of Indigenous natural law and are working towards mitigating the spill site and surrounding area in their own way.
Although assurances were provided by the Ontario Ministry of Environment and Climate Change (MOECC), and CN Rail, that the crude oil spillage will not affect waterways, our community was advised to refrain from eating fish from the creek adjacent to the rail line which is a tributary to the Upper Kasasway Lake and Mattagami River Watershed.
This infringes on our ability to exercise our rights under Section 35 of the Canada Constitution Act, 1982, along with our pre-existing jurisdiction prior to Canada’s repatriation of its Constitution.
Mattagami and Flying Post First Nations remain concerned that there will be undetermined long- term impacts to the environment and are not satisfied with the process the MOECC and CN Rail will be implementing to monitor the site in the short and long term. This is why we called for a direct role in monitoring the spill site and surrounding area and are working with Nishnawbe Aski Nation, our Treaty organization, to ensure this takes place.
When the derailment happened, it raised a question amongst First Nations about just how much do Treaty Agreements, Section 35 of the Canada Constitution Act, 1982, and the United Nations Declaration on the Rights of Indigenous Peoples mean to government and the private sector (in this case CN Rail) as they discharge their responsibilities to mitigate, restore and monitor the environment when oil spills take place.
It also raised a question on the respective role of First Nations as global trade opportunities intensify and the demand for transportation and logistics increase over our traditional territories and ancestral lands via rail, and as new regulations and legislation come into effect after the Lac-Mégantic disaster.
British Columbia Coastal First Nations, under the Great Bear Initiative, have raised similar questions regarding marine freight transportation as crude oil is being considered for transport to Asian refiners through the pristine waters within their territories.
Of the many private sector businesses that exist in Canada, CN Rail proudly boasts as being one of the oldest with more than 100 years under their belt. In fact, many of the Nations who entered into Treaties throughout Canada were part of building rail infrastructure which today has become more unstable due to permafrost degradation as a result of climate change and over 10 decades of use.
Days after the derailment first happened, up to present, it became clear to me that First Nations people are still considered as third-party stakeholders; and that the Treaties and Indigenous peoples’ domestic and international rights do not appear to be a real consideration.
As Canada evolves its transportation policy and infrastructure in order to be competitive and align itself with global trade opportunities, this will be a major problem for First Nations whose lands and waters the transportation network cross.
This issue must be considered in decision making, in the socio-economic agenda, and in the next federal campaign. It is time for Canada and the private sector to know that the cost of transportation includes major consideration for the Treaty Agreements and rights of First Nations.
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