One anecdote we know from Exxon is that together with Murphy Oil Inc. in 2007 they launched a challenge under NAFTA chapter 11 investment to overrule NewFoundland and Labrador legislation. Exxon does not recognize a provincial law which requires oil and gas businesses to make a financial contribution to education and research in the province. A wave of similar corporate NAFTA chapter 11 challenges including against environmental legislation, which attempt across the country to overrule provincial legislation by the use of off shore arbitration panels, is a recent development. The Yukon land claims legislation recognizes the original Foothills Pipelines (still part of TransCanada Pipelines) right of way in the Yukon but does not limit rewards, also the White River and Kaska First Nations dont have agreements.
The Yukon First Nations deserve assurance that their rights have not been undermined by negotiations of the Fentie government with the Alaska government and that land claims will not be overruled by a NAFTA chapter 11 challenge or the threat thereof. The possibility of this scenario has been predicted by Tony Pennikett in his book Reconciliation. So concerned was he about his findings that he wrote a letter to then Prime Minister Jean Chretien about this concern; the letter is quoted in the book. Pennikett is a former NDP Yukon Premier who is now a leading land claims consultant for indigenous peoples worldwide.
This is potentially the meaning of the TransCanada Exxon partnership. The business alignment of TransCanada and Exxon is phony at this point but a formal partnership has been created from which a NAFTA arbitration panel can be assembled,
A chapter 11 challenge can only be launched across a border, TransCanada Pipelines needs a powerful American partner like ExxonMobil to be the hired hitman.
There are people who can find out which is not easy as nothing is published on the early stages of a NAFTA arbitration case. What about the trade lawyer Stephen Shrybman? He was most effective in his investigation of the so called Trade Investment Labour Mobility agreement, which led several provincial governments to reject it. TILMA had been designed as inter provincial implementation of NAFTA chapter 11 with strong anti-democratic aspects.
Treasonous and illegal arrangements to attack the land claims legislation would be an insult to all Yukoners. On the other hand broken treaties are not exactly a historic novelty. The First Nations Agreements are already threatened. Where for example does Fentie's arrogance come from when he constantly provokes court action in simply pushing government's obligations from the agreements into the courts? The rest of Canada is certainly watching.
The Yukon First Nations agreements represent the continuation of a 400 hundred year old conversation with serious ups and downs between immigrants and aboriginal people. If the agreements are cut, Canadian democracy, the oldest unbroken constitutional tradition on the planet, which is further unique in its oral characteristic of a continuous adaptation process, will give up territory to creeping totalitarian trends. If the agreements hold out against chapter 11 it may be because chapter 11 can actually be cancelled in six months notice with much less trouble than keeping it. I think the well being of the land claims matters a lot also to the White River and Kaska First Nations. The Canadian Common Law tradition has created a precedence that gives them a position that is stronger than that of the other Yukon First Nations before their Final Agreements.
Everybody should be interested in clarification, the YG, the legislature, the First Nations, all the other citizens, even the Yes men and Yes women from the CBC who live in Harpers LaLa free trade land and who shout protectionism, protectionism these days more often than they used to. They do this if somebody wants to investigate the possibly unlawful doing based on a specifically problematic NAFTA provision (That is what they did when Obama mentioned human rights and ecological problems in NAFTA).
If there is no problem, fine. But if there is and we dont look it will hurt a lot.
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Explore a Career - Transporting and Logistics in Pipeline Constructionby CanadianPipeliners1,142 views
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