Pipe Dreams: Enbridge Northern Gateway Pipeline and the Legal Paradigms of Canadian Settler Colonialism

Abstract:

In the years since Canada's 1982 constitutional enshrinement of Indigenous rights and title, Indigenous peoples have seen their rights continuously defined and adjudicated by the courts. In many respects these new rights have been posited to support Indigenous peoples’ ability to assert self-determination under Canadian law. Yet, as Glen Coulthard argues, the last forty years have also seen a shift toward “politics of recognition.” In this sense, Coulthard suggests that “where ‘recognition’ is conceived as something that is ultimately ‘granted’ or ‘accorded’ by the dominating power, this domination is perpetuated.” Informed by Coulthard's conceptualization of recognition, my thesis investigates ongoing settler colonial dynamics laid within the Canadian state's assumption of underlying Crown sovereignty. Using a case study of Enbridge Northern Gateway pipeline against the backdrop of amounting case law and a political push for energy sector expansion, I specifically explore how resource projects and their regulatory review replicate settler colonial structures of dispossession and the perfection of state sovereignty as seen prior to 1982. Doing so, my thesis argues that regulatory processes and case law implement legal protections for Indigenous rights that inherently limit Indigenous peoples’ territorial jurisdiction—all while subjugating Indigenous nations through the state's assumed right to define and allocate these rights.