The Immediate and Lasting Impact of the Inquiry into the Construction of a Pipeline in the Mackenzie Valley, 1974-77

This chapter is from a book edited by Greg Inwood and Carolyn Johns called Commissions of Inquiry and Policy Change: A Comparative Analysis. The book has been submitted to University of Toronto Press and is currently under peer review. The unpublished chapter appears on our website by permission of U of T Press and the editors.

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The Immediate and Lasting Impact of the Inquiry into the Construction of a Pipeline in the Mackenzie Valley, 1974-77by Frances Abele

Introduction

Indigenous people have achieved a peaceful revolution in northern Canada, changing the political map of the country and permanently adjusting the political balance of power in the north. In a generation, northern Indigenous people moved from marginalization to the centre of political life. The 1974-77 Inquiry into the Construction of a Pipeline in the Mackenzie Valley led by Thomas Berger marked an important moment in this broad political transformation, which was both institutional and attitudinal.

The Berger Inquiry drew very wide and deep participation in northern Canada, probably the first (but by no means the last) time that most of the residents of the north were part of a common public policy debate. While it was in session, the Inquiry also held the attention of the southern Canadian public. It attracted the participation of southern Canadian political groups, including economic nationalists, environmentalists, church groups, and social justice coalitions, in addition to a number of unaffiliated Canadian citizens. It was a powerful focus of citizen engagement for an academic and political generation. In the North, many of the Indigenous and non-Indigenous activists who were drawn into the process in the 1970s remain active, often in positions of power and influence.

The Inquiry’s report, Northern Frontier, Northern Homeland established an enduring paradigm for public understanding of the meaning of northern development, captured in the title of the report. Before the Inquiry, northern development policy was understood, rather straightforwardly, to mean the orderly extension of the natural resource frontier; afterwards it was necessary to take into account that what was seen as a frontier from the southern perspective was also the homeland of Indigenous people who did not at all share this vision. Over thirty years since the Inquiry’s report was released, the binary paradigm captured in its title still resonates, almost taken for granted in official approaches and academic thinking about the North.

Many of the institutional innovations of the Berger Inquiry were adopted in other processes of public consultation, particularly the environmental assessment processes that were introduced in the Inquiry's aftermath. Innovations included the practices of taking the hearings to northern communities, funding intervenors, providing interpretation so that individuals could testify in their own language, open availability of information tabled by the proponent, and encouraging press coverage. The Inquiry's expansive interpretation of its mandate, to encompass understanding the connections among social, economic, cultural and political development, also had an impact. And though the mandates of future regulatory processes were to be more constrained, all were developed with respect to the practices of the Berger Inquiry.

The Inquiry made two major recommendations: (1) for environmental reasons, there should never be a pipeline on the northern coast of Yukon, and (2) there should be no pipeline constructed in the Mackenzie Valley for ten years, to permit time for Indigenous land rights to be settled and appropriate benefits programs to be put in place. In the event, no pipeline has been built on the northern coast of Yukon. Just three years after Berger reported, however, the federal Cabinet approved construction of an oil pipeline from Norman Wells to Zama, in northern Alberta, passing through some of the same Dene territory that the gas line would have. Although there is a widespread view to the contrary, especially in the North, it is unlikely that the Inquiry’s reasoning or recommendations halted the Mackenzie Gas pipeline. By the end of the 1970s, the world energy picture had changed sufficiently that immediate construction of a large diameter gas pipeline to bring offshore arctic gas to southern markets was no longer attractive. The Inquiry itself, perhaps, delayed a decision long enough for the economic case for construction to dissipate.

It is virtually impossible to assess the relative weight of the various sources of social and political change underway in the north during the 1970s. There is no doubt that the Inquiry was an important part of a broader political process. This included the rising of a new generation of well-educated and bilingual Indigenous people who could represent community interests and their objections to external pressures on their way of life. While northern Indigenous people would certainly have organized and mobilized in the absence of the Berger inquiry, Inquiry provided an institutional focus and, for a time, the funding required for internal communication and research. The Inquiry did not invent but strengthened and elaborated processes for community-based, public deliberation that were reflected in subsequent formal environmental assessment processes but also in the politics of the Northwest Territories. It is this broader impact for which the Berger Inquiry is rightly renowned and regarded as a milestone in northern political and economic development. In the pages that follow, I attempt to justify the claims I have just made for the Inquiry's impact by means of a structured narrative that treats the context, ideas, institutions, actors and relationships implicated in the story.

Context: Gathering Forces of Change in Northern Canada

The Indigenous peoples of the Mackenzie River Valley and Delta are the Inuvialuit, Dene, and Métis. Each have a distinctive history and a somewhat different experience of contact with outsiders. Inuvialuit are an Inuit people who live on the coastal mainland and neighbouring islands where the Mackenzie River flows into the Arctic Ocean. Very early they found means to continue their subsistence harvest while they became successful traders, whalers and trappers. Despite the ravages of influenza and other diseases, they managed to live both in collaboration with and, when they chose, apart from the whalers and traders who entered their lands and waters starting in the 18th century. In common with Inuit across the North, they were never subject to the Indian Act and until modern times did not seek treaties with newcomers.

The Dene homelands lie in the northwestern half (approximately) of the Northwest Territories, as well as portions of northern British Columbia, Alberta, Saskatchewan and Manitoba. While all identifying as Dene, they speak five different languages and have strong regional affiliations. They began to seek treaties with in-comers soon after it became clear that increasing numbers of visitors were likely to strain local resources to an unsustainable level. The Dene saw treaties as a means of protecting their access to the lands and resources upon which their livelihood depended. Preoccupied with east-west nation-building, the federal government was for many years disinterested in negotiating treaties for northern, non-agricultural lands. When treaties were finally negotiated in the northlands, they were prompted by external interest in mineral resource development. The Dene signatories hoped by means of the treaties to regulate the impact of migration and development; the Crown representatives sought to clear the way for the same. Crown objectives were met, in the short term.

Contrary to the case in southern Canada, in most of the NWT, Métis and Dene lived closely together and they were not always distinguished at treaty-making. The close connections among Dene and Métis in the northern Mackenzie Valley is reflected in the fact that Métis are parties to two of the comprehensive claims agreements (Gwitch’in and Sahtu). There are also Metis living in the Northwest Territories who are descendents of Red River Métis, and who so identify.

For the Dene, Treaties 8 (1898) and 11 (1921) meant more contact with external authorities (including annual Treaty parties at which the treaties were symbolically affirmed), and enforcement of game laws, often in a fashion that disrupted traditional harvesting practices of both Dene and Métis. The game preserves they requested were indeed created, but these were separate and relatively small parcels; they did not provide all hunters with adequate or equitable access.

The Second World War brought many more disruptions. The threat of a war in the north Pacific led the United States to build the Alaska Highway and the Canol pipeline, the latter to bring strategic oil reserves from Norman Wells on the Mackenzie River west through depots in the Yukon to Alaska. These major construction projects brought large numbers of service personnel north, and each were built through Dene and other Indigenous peoples’ territory. After the war, the expansion of the welfare state and of the federal presence in the north meant that there were still more sustained interventions in Dene and Métis societies, including the introduction of compulsory schooling, more health care, social housing and measures to encourage Indigenous peoples across the north to settle in communities. These long-term pressures and outstanding treaty issues, and the growing Indigenous peoples’ movement in southern Canada in the 1950s and 1960s, created the necessary conditions for mobilization in the communities of the Mackenzie Valley.

Pressures of another sort had been mounting in Ottawa. In Canada as in many countries, the end of the Second World War marked a new and more active phase in the role for the state in social provision and in economic development. At the same time, the War had increased integration of the American and Canadian economies, and after the war sustained United States demand for energy and natural resources meant the rapid development of the Canadian mid-north. There were also military connections between Canada and the US, born out of the common war effort and then the Cold War fears of the Soviet Union. These kept US forces in the Canadian north well after the peace in 1945.

For federal northern policy, there were a number of consequences. First, United States military personnel in the Canadian north were ‘welcomed’ with a certain unease. With sovereignty considerations in mind, it was deemed wise to develop a stronger Canadian state presence in northern Canada. Secondly, a stronger state presence meant increased southern visibility of the conditions of northern Indigenous people, which in some cases were very difficult. Where before the war provision of health care and other services to northern Indigenous peoples was hardly countenanced, after the war , with expanding welfare state provisions in the country as a whole, active interventions were made. A third consequence of the new postwar condition was perhaps best expressed in Prime Minister John Diefenbaker’s slogan, “Roads to Resources.” The vast northland would at last be opened to development, with the state providing infrastructure and incentives to private development of northern resources.

The apogee of this approach to northern development was reached in the mid-1960s, by which time most Indigenous people across the territorial north had been induced to settle in new social housing in communities where the children were attending school, and the Department of Indian Affairs and Northern Development was playing a dominant role in northern development planning. Economic development policy turned upon state promotion and subsidy of private development of resource development, while northern social policy was interventionist to the point of social engineering. An array of programs and measures were designed to prepare northern Indigenous people for life in towns and the wage employment that would be provided by corporations engaged in resource development.

By 1968, the brightest beam in official Ottawa eyes was the proposal to build a pipeline in the Mackenzie Valley. The Mackenzie Valley pipeline proposal was enmeshed in a number of considerations of foreign policy and Canada-US relations. Oil discoveries off the north coast of Alaska raised the issue of transportation, and Canadian officials were anxious to promote a pipeline through Canadian territory to bring the oil to southern markets. In close collaboration with industry, officials encouraged the formation of a coalition of large corporations to put forward the Canadian proposal and prepared guidelines for this project premised on ultimate National Energy Board approval. Also in 1968, anxieties about Canadian Arctic sovereignty were raised by the transit of a United States submarine, the Manhattan, through the Northwest Passage without prior Canadian permission. This challenge was managed, but it underlined the importance of an assertive federal presence in the North --not to prohibit the American presence but to enforce a level of cooperation and to deter unilateral U.S. actions.

The Mackenzie Valley pipeline, oil or gas, was a response to this imperative. It was seen also as a major economic opportunity and a logical aspect of northern infrastructure development. The Mackenzie Valley pipeline would be the centrepiece of a new transportation corridor which would open the far north to the industrial economy. Besides benefitting the national economy, the Mackenzie Valley pipeline was expected to generate employment and business opportunities in the north and to form the keystone for future development. The project was announced in this optimistic spirit, and construction was begun on the road system to support pipeline construction.

The pipeline project, however, proved to be a step too far. Dene, Métis and Inuvialuit had begun to organize politically in the 1950s and 1960s in response to the increased level of postwar state intervention. Some of their concerns were longstanding (inappropriate game law enforcement) while others were a response to the social engineering measures implemented after the Second World War. An overarching concern was the failure of the federal government to respect what the Indigenous people understood to be the most important terms of the treaties. When they learned of the proposal to build a pipeline the length of the Mackenzie Valley on Dene, Metis and Inuvialuit land, they decided to resist. In 1971, sixteen Dene chiefs applied to file a caveat on the lands through which the pipeline was to be built, arguing that the written version of the treaty that the Crown claimed opened their lands to development did not reflect the understanding of the signatories. Presented with testimony from individuals who had been present at the signing of Treaty 11 in the early 1920s, Justice Morrow of the Supreme Court of the Northwest Territories found that “there was sufficient doubt on the facts that aboriginal title was existing” to justify the caveat. The federal appeal of this decision to the Supreme Court of Canada was successful, but by then, the Morrow decision had halted development momentum and added to the pressure to recognize Indigenous land rights that was already mounting as a result of other court actions.

As all this was occurring in the early 1970s, the circumstances faced by the federal Cabinet were unusual and favourable to innovation. First, relations with Indigenous peoples across Canada were in crisis. The 1969 White Paper on Indian Policy, intended to bring the liberal and reforming values of the new Trudeau government to Indian affairs, had the perverse effect of galvanizing a Canada-wide Aboriginal movement against the White Paper’s main proposals. By 1973, the ideas that animated the White Paper had been abrogated, with the federal government backing away from plans to consign the historic treaties to the dustbin of history, and announcing willingness to negotiate any outstanding “native claims.” This was a moment in modern Canadian history at which all matters of Crown-Indigenous relations were highly visible, sensitive and fluid. The federal claim on Indigenous territories where no treaties had been negotiated was in doubt, while many treaties were in question due to federal non-compliance and some other irregularities.

The second important consideration arose out of electoral politics. After the triumphant Liberal victory of 1968, the 1972 general election, returned a minority Liberal government, sustained in power by the support of the New Democratic Party –a party that then had very strong doubts about the growing integration of the Canadian resource economy with the US industrial machine, and as well as a commitment to Aboriginal rights.

A third complicating factor was the sudden global shudder created by the 1973 OPEC oil embargo. In the growing global energy crisis, Canadian leaders and many citizens saw an imperative for Canada to reconsider its energy strategy, and particularly to attend to matters of domestic energy security. Through the mid-1970s federal government concerns shifted between anxiety over preserving Canadian producers' access to US markets to interest in securing an adequate domestic supply.

Fourth, the American response to the energy crisis, and in particular, growing interest in northern energy resources and transportation options, coupled with Canadian sovereignty concerns arising from the voyage of the Manhattan, raised nationalist concerns in Ottawa and also in the Canadian public. Citizens' groups were formed to advocate for a distinct Canadian interest in the energy and other industrial sectors.

Finally, the new environmentalist movement was drawing attention to the dangers of pollution from the production and transportation of Arctic energy resources, expressed in the formation of the Canadian Arctic Resources Committee (CARC) in May 1972, a coalition of experts from a number of disciplines. CARC's purpose was to encourage debate and analysis about northern energy development and in doing so, it joined other, more venerable environmental organizations such as the Canadian Nature Federation.

On Dosman's account, the major preoccupations in official Ottawa were with managing American challenges to Canadian sovereignty while promoting American markets for Canadian energy, and the resulting tension when Canadian security of supply became an issue. In these circumstances, the Dene, Metis and Inuvialuit opposition to the Mackenzie Valley pipeline resonated --as much as they surprised officials who did not expect a serious domestic obstacle to their plans. Rather than pressing ahead with the project, or postponing it, Cabinet decided to hold a public inquiry:

to inquire into and report upon the terms and conditions that should be imposed in respect of any right-of-way that might be granted across Crown lands for the purposes of the proposed Mackenzie Valley pipeline having regard to
(a) the social, environmental and economic impact regionally, of the construction, operation and subsequent abandonment of the proposed pipeline in the Yukon and the Northwest Territories, and
(b) any proposals to meet the specific environmental and social concerns set out in the Expanded Guidelines for Northern Pipelines as tabled in the House of Commons on June 28, 1972 by the Minister.

It seems likely that the government’s minority position, and the pivotal position of the NDP, influenced this decision, and perhaps influenced also the selection of Thomas Berger, a well-known Indigenous rights lawyer and British Columbia justice, to lead the inquiry. Then Minister of Indian Affairs Jean Chretien has stated that Mr. Berger was his personal choice, and one that was supported by Prime Minister Trudeau (who had been impressed by Berger's arguments in the Calder case) and by Energy minister Donald MacDonald. While the influence of the NDP cannot be discounted, it is clear that even in 1972 when Mr. Berger was appointed, there were sufficient contextual uncertainties to suggest that a credible public inquiry would be in the country's long term interest --as well as in the pragmatic short term interest of the minority government. At this stage, of course, none of the decision-makers could have anticipated the long-term impact of the inquiry.