3.1 Background to the case

The Chippewas of the Thames (‘the Chippewas’) objected to a 2013 Enbridge proposal to modify its Line 9 pipeline, which connects Sarnia, Ontario to Montreal, Quebec, in Canada. Line 9 was originally opened in 1976 to transport crude oil from western Canada to eastern refineries and was constructed without any consultation with the Chippewas. In 1999, Line 9 was reversed to carry oil westward. In 2013, Enbridge lodged an application for the re-reversal of the flow back to an eastward direction in a particular segment, as well as for an increase in the annual capacity from 240,000 to 300,000 barrels per day. The 2013 application also sought to change the designation of oil being carried in the pipeline to heavy crude. Virtually all of the construction required for these changes would take place on previously disturbed lands owned by Enbridge and on Enbridge's rights of way.Footnote ²⁰

In February 2013, after Enbridge filed an application for approval, the NEB notified nineteen potentially affected indigenous groups, including the Chippewas, informing them of the project, their role and the upcoming hearing process.Footnote ²¹ Representatives of the Chippewas participated in the NEB hearings and raised several objections, the most substantive relating to the infringement of their indigenous hunting, trapping and fishing rights in the lands that might be impacted by the pipeline. They also raised concerns about the increased risk of pipeline ruptures and spills that could adversely impact their use of the surrounding land and the Thames River for traditional purposes.Footnote ²² In addition, the Chippewas wrote a letter to the prime minister and several Canadian federal government ministries describing their asserted indigenous and treaty rights and the project's potential impact on them. No response was heard back from these ministries until after the conclusion of the NEB hearing.

The Chippewas specifically raised concerns that the project assessment did not consider scenarios involving pipeline-rupture events and noted perceived regulatory gaps relating to pipeline monitoring and the enforcement of standards to prevent leakage and ensure safety. Enbridge dismissed these concerns and took the position before the NEB that ‘scenarios concerning pipeline rupture events [were] not within the scope of the Line 9 application’.Footnote ²³ However, in response to an information request, Enbridge did acknowledge that a release of crude oil from Line 9 during the operational phase of the project may cause adverse environmental effects and correspondingly impair the ability to exercise indigenous and treaty rights.Footnote ²⁴

In January 2014, the NEB concluded its hearing process and granted Enbridge's application. In its reasons, the NEB stated that it ‘considers all of the benefits and burdens associated with the project, balancing the interests and concerns of indigenous groups with other interests and factors’.Footnote ²⁵ The Minister of Natural Resources then responded to the September 2013 letter that had been sent by the Chippewas by stating that the government relied on the NEB processes to address potential impacts to indigenous and treaty rights and had fulfilled the Crown's duty to consult indigenous peoples on the project.

3.2 The NEB decision

The Chippewas argued before the SCC that the federal government's duty to consult had not been fulfilled by the NEB process. They argued that there were numerous deficiencies including that no order was made to remedy the lack of information provided and nothing was done to address the perceived lack of pipeline regulatory oversight.Footnote ²⁶ Responding to these submissions, the NEB relied on the fact that Enbridge's application assessment was not an assessment of the current operations of Line 9, but only an assessment of a modification of the existing pipeline, including an increase in the capacity, the transport of heavy crude and a reversal of flow. They stressed that no permanent land rights need be acquired and all work would take place on existing Enbridge facilities and rights of way. Given the limited scope of the application, the NEB was satisfied the Chippewas had received adequate information and had had an opportunity to share their views about the project through the hearing process and discussions with Enbridge.Footnote ²⁷ The NEB concluded: ‘Any potential Project impacts on the rights and interests of Aboriginal groups are likely to be minimal and will be appropriately mitigated …. Enbridge will continue to safely operate Line 9, protect the environment, and maintain comprehensive emergency response plans.’Footnote ²⁸

3.3 The SCC decision

The SCC dismissed the Chippewas’ appeal in Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. et al.Footnote ²⁹ and confirmed the decision of the NEB. The court found there were adequate accommodations to address the concerns of the Chippewas.Footnote ³⁰

The SCC determined that the Crown's duty to consult the Chippewas was fulfilled through the NEB hearings. The SCC concluded that a separate proceeding therefore was not required, as the NEB had provided notice of the hearing, disclosed all parties’ information, heard the arguments of the Chippewas and rendered a written decision with reasons. The SCC acknowledged it might be impossible to understand a project's seriousness without considering the larger context and cumulative effects of an ongoing project. The court further noted that the historical context may inform both the duty to consult as well as consideration of ‘cumulative’ effects.Footnote ³¹ However, immediately after the court noted this, the court concluded, without any elaboration or discussion in the Chippewas’ case, that the consultation undertaken was manifestly adequate, thus only paying lip service to the ideas of historical context and ‘cumulative’ effects. The court determined that, in the Chippewas’ case, it was not ‘relevant’ that the Chippewas had never been consulted in regard to the original pipeline. Indigenous rights did not attain constitutional protection until 1982 and, as a consequence, prior infringements are not actionable. As a result, even though the Line 9 pipeline was historically constructed without consultation, the SCC confirmed that, first, the duty to consult is not triggered by historical impacts and, second, that the duty to consult is not the vehicle to address historical grievances.Footnote ³² In relation to arguments about ‘cumulative’ effects, the court held that the duty to consult only related to the specific proposal at issue and not to the adverse impacts of the whole project of which it is part.Footnote ³³

The SCC thus found that the consultation undertaken in the case of the Chippewas by the NEB was manifestly adequate,Footnote ³⁴ even though the NEB failed to discuss any possible accommodation of the Chippewas’ concerns surrounding pipeline leaks.Footnote ³⁵ Moreover, the SCC did not consider any evidence about past or potential pipeline leaks, nor did it assess the probability of leaks in the future. Pipeline leakage was simply not considered by the court.

4.1 Intersectionality

The roots of intersectionality trace back at least to the 1980s, originating from Black feminist critiques of Second Wave feminisms that had centralised the experiences of White, middle-class and heterosexual women (hooks, Reference hooks1989; Hull et al., Reference Hull, Bell-Scott and Smith1982/2015; Moraga and Anzaldúa, Reference Moraga and Anzaldúa1981/2015). Intersectionality has since evolved within anti-oppressive research to consider the interconnectedness of differing components of identity – including gender, ‘race’, culture, class, age, sexuality and geopolitical location, amongst others – and their connection to broader systems of power and privilege (Crenshaw, Reference Crenshaw1991). Intersectionality helps to address the problems of universalisation and essentialism that occur from viewing experience as only the product of singular and discrete identity categories (Harris, Reference Harris1990).

Intersectionality therefore highlights different experiences of inequality and oppression that occur through the interaction (i.e. at the intersection) of ‘race’, ethnicity, culture, gender, ability, sexuality, socio-economic status (SES), geographical location and other axes of inequality, and therefore cannot be understood through only a singular lens (such as indigeneity, ‘race’ or gender alone) (Davis, Reference Davis2015). An intersectional approach examines a person's lived experience through the interconnection of their numerous social dimensions of identity. This examination is not merely a summation (Bowleg, Reference Bowleg2008), but rather an interactive layering of these social dimensions of identity to produce context-specific and situationally constructed experiences. However, an intersectional approach should also recognise the relatively perseverant structural origins of oppression (Smooth, Reference Smooth and Wilson2013), such as colonisation, capitalism and/or patriarchy, for example. In other words, inequality at the intersection of indigeneity, location and SES is not ‘naturally occurring’, but is the product of interconnected historical and contemporary power structures that have caused inequality and that are, in turn, embedded in legal architectures. Analytic examination of key aspects of social location for the Chippewas as a nation, together with their lived experience of the law in this case (Comack, Reference Comack1990/2006), effectively illustrates the dichotomy of their experience advancing indigenous rights with indigenous rights on paper.

Our legal system often fails to recognise the lived experience and/or experience of a person's multiple identity markers in its jurisprudential application of the law (Conaghan, Reference Conaghan and Grabham2008). As Davis (Reference Davis2015, p. 209) states: ‘[m]ethodologically, intersectionality examines lapses in legal recognition of those people existing in the overlap of multiple identity markers.’ A figurative ‘negative space’ is created in which individuals or groups experience disadvantage due to intersectional oppression or inequality (Davis, Reference Davis2015, p. 209). Within this negative space, the experiences fall outside of legal precedents, without recognition or legal remedy (Davis, Reference Davis2015). When this negative space is identified and examined, an intersectionality analysis can compare protections of those with individual markers with the lack of protections available to people experiencing multiple markers of inequality (Davis, Reference Davis2015).

This method of analysing the impacts of law demonstrates how ‘law concretised and naturalised power relationships that were in fact contingent and constructed’ (Crenshaw, Reference Crenshaw1991, p. 228). Through the examination of the legal case, the contradictory ways in which law advances yet dismisses indigenous claims allows an unpacking of legal doctrine to illustrate underlying assumptions, institutional values, concrete particulars and subjectivities against which indigenous rights are determined unworthy, including the ideological processes delegitimising their claims (Crenshaw, Reference Crenshaw1991). The written jurisprudential law of indigenous rights of Section 2 contrasts with the lived experience of the Chippewas. Although indigenous rights and the duty to consult illustrate the advancement of indigenous claims, the deeper analysis contained in Section 5 reveals the contradictory ways in which the application of this law in the Chippewas’ case dismisses or de-legitimises these claims. Intersectionality allows the analysis of particular social structures and power systems that contribute to the Chippewas’ experience of legal inequality in this case (Pheonix, Reference Phoenix, Lutz, Vivar and Supik2011).

Intersectionality as a concept has considerable pliability and has expanded into considerations of environment; it has travelled across the globe; it has been sensitised to multiple manifestations including into studies of masculinities, heteronormativity, migration and transnational livelihoods of post-colonial migrants (Lutz et al., Reference Lutz, Vivar and Supik2011; Cho, Reference Cho2013). Feminist scholars have suggested the potential usefulness of intersectional analysis in the areas of environmental conflict (Fletcher, Reference Fletcher and Fröhlich2018) and climate change (Kaijser and Kronsell, Reference Kaijser and Krosnell2014; Moosa and Tuana, Reference Moosa and Tuana2014). Further intersectional analysis concerning climate change and human relations with the ‘non-human other’ has highlighted the uneven distribution of environmental burdens (Slicer, Reference Slicer2015).

4.2 Intersectionality in the Chippewas’ experience

This paper examines a particular legal–environmental conflict shaped by the intersection of SES, culture and geographic location. The low average SES within the Chippewas of the Thames First Nation is affected by structural inequalities stemming from Canada's history of colonisation. Traditional activities of hunting, trapping and fishing contribute to livelihood and reinforce a cultural connection to the land and environment that goes beyond human relations. Geographic location (on developed land in Ontario, in proximity to an already built pipeline), in combination with colonial history and legal systems, had profound implications for the Chippewas’ experience before the SCC.

The Chippewas people experience intersectional oppression due to several overlapping and indiscrete factors: their indigenous status and the historical denigration of their culture in a colonial White-settler society; their SES, which is itself a product of the ongoing effects of colonisation; and their geographical location, which places them in a specific environmental and legal context that fails to recognise their culture, worldview and legal entitlements. This unique position at the intersection of these factors is illustrated in Figure 1. First, the Chippewas’ status as indigenous is reflected in their standing under the Indian Act, status as a treaty signatory and possession of reserve and traditional lands.Footnote ³⁶ Based on a 2014 Census, 2,738 Chippewas people live on-reserve in south-west Ontario, Canada; the size of the reserve is 9,025.8 acres, or 39.11 km².Footnote ³⁷

Figure 1.

Intersectional positionality of the Chippewas

Second, SES is a key determinant of social inequality for the Chippewas people. Demographic statistics not only illustrate the marginalisation of indigenous people in Canadian society, but also reveal additional intersectional inequalities, such as gender inequality and residence location, within the indigenous population itself. Median incomes for indigenous people in Canada are significantly lower than those of non-indigenous people.Footnote ³⁸ Data from the 2016 Census clearly demonstrate an additional, significant income gap experienced by indigenous women relative to indigenous men, as well as relative to both non-indigenous men and women (Table 1). Furthermore, indigenous people living on-reserve earned over $9,000 less in terms of median after-tax income than those living off-reserve.Footnote ³⁹ Relative to non-indigenous people, highly educated indigenous people still experience significant earnings gaps (Crane et al., Reference Crane, Mainville and Mason2008). Indigenous people are also overrepresented in the Canadian justice system, representing 3.1 per cent of the adult population in 2006, but 17 per cent of people admitted to remand (temporary incarceration after being charged with an offence), 18 per cent of people admitted to provincial prison and 19 per cent admitted to a conditional sentence.Footnote ⁴⁰

Table 1.

Example of intersectional income inequality for indigenous people in Canada

Data source: Statistics Canada, Census 2016, Data Table/Catalogue # 98-400-x2016171.

For the Chippewas specifically, in 2011 (the most recent year for which Census data are available for the community), the median household income was $27,200,Footnote ⁴¹ which is well below the ‘low income’ cutoff for a family of four in Canada, which was $30,487 in 2011.Footnote ⁴² In the Chippewas’ Comprehensive Community Plan of 2012, a five-year strategy was developed to address specific concerns of the Chippewas’ SES, which included: 80 per cent of households struggling with the impacts of intergenerational trauma and healing issues; 75 per cent of children living in poverty and 80 per cent with drug or alcohol addictions; 25 per cent of houses having serious mould problems. Also, there has not been potable water in the community for months. Further, 70 per cent of households receive social-assistance payments, with only 30 per cent working at jobs or in a business. Most young people never go to university or college.Footnote ⁴³ It is clear that, in Canada, indigenous people uniquely experience multiple forms of oppression.

Each of the three social dimensions of identity (including geographical location) will be considered further below. First, indigeneity as identity will be considered (in Section 5.1); second, SES and the Chippewas hunting, trapping and fishing livelihoods will be examined (in Section 5.2); lastly, the geographical location of the Chippewas will be outlined (in Section 5.3) and connected to its relevance in the legal case discussed here.

5.1 Culture, history of colonisation and indigenous status

The failure of the Chippewas’ claims illustrates how the intersections of their SES (and traditional lifestyle, which is inherently connected to the land) and indigeneity determine two experiences before the SCC. It illustrates, first, as Davis (Reference Davis2015) posits, the lapses in legal recognition and, second, as identified by Crenshaw (Reference Crenshaw1991), the reality of the architecture of Canadian law, despite contestation of constitutionally paramount indigenous rights. Each will be discussed in turn.

5.1.1 Lapses in legal recognition

The NEB and SCC sidestepped the justifiable infringement analysis of indigenous socio-economic rights and focused on the adequacy of consultation. The Chippewas argued it was unjust that the NEB did not identify the strength of the asserted indigenous and treaty rights, nor identify the depth of consultation required in relation to each indigenous group.Footnote ⁴⁴ The SCC decided in the Chippewas’ case that this was not required. For the Chippewas, the SCC concluded that there was no necessity for providing a formulaic analysis of the strength of their claims and the depth of the consultations, arguably because the pipeline had existed prior to the application to the NEB to expand and modify it.Footnote ⁴⁵

Although not forming part of the binding portion of the decision (the ratio decidendi), the description and summary of the Chippewas’ claim by the SCC were much narrower than how the Chippewas described their claim, and this is arguably illustrative of a reduction and dismissal of the Chippewas’ claim. Table 2 provides a breakdown of how the substance of the claim was described in the SCC judgment and in the Chippewas’ court documents.

Table 2.

Description of Chippewas’ claim and impact of reduction

The table shows how the SCC substantially reworded the claims of the Chippewas, essentially abbreviating, reducing and, ultimately in the Chippewas’ decision, rejecting their rights. By not recognising the traditional territory upon which the treaty rights were to be exercised, but only the indigenous title to the bed and airspace over the Thames River, the hunting, trapping and fishing rights are significantly reduced potentially to only that portion of the Thames River adjoining the reserve – a much smaller area than the Chippewas claim. Further, it is possible to have both a title to the bed of the river as well as an indigenous right to use of the water flowing through the river in relation to quantity and quality. The narrow language of the SCC reduces these rights to either the title to the bed or the use of the water, but does not allow both.

As there was no explanation for these reductions in the written reasons provided by the SCC, there is clear evidence of the negative legal space occupied by the Chippewas where their claims, connected to their culture and lifestyle of hunting, trapping and fishing and situated within the context of a fulsome worldview, are without recognition or remedy. Considering the already low SES of the Chippewas compared to the general Canadian population, access to traditional foods (including the provision for commercial sale) become particularly significant for food security and potential income. The SCC failed to recognise the Chippewas’ indigenous rights, thus illustrating ‘lapses in legal recognition of those existing in the overlap of multiple identity markers’ (Davis, Reference Davis2015, p. 209).

The failure of the Chippewas’ claim implies that pipelines built prior to 1982 can be expanded, reversed and repurposed with little perceived impact on indigenous rights. It also demonstrates the failure of the legal system to fully comprehend indigenous cultural values and worldview, thus resulting in a reductionist approach and a legal failure to consider intersections between cultural values and contemporary inequalities such as SES (itself a product of colonisation). Effectively, NEB processes in these instances were considered sufficient to address the Crown's obligation and duty to consult indigenous peoples. Further, plans to provide information and education suffice for the Crown to meet any ongoing obligations. The next section addresses why indigenous rights were reduced in this case.

5.2 SES and further marginalisation of the Chippewas

The further marginalisation of the Chippewas’ due to SES (the second marker of intersectionality in Figure 1) occurred in two ways. First, the NEB and SCC effectively gave higher metaphorical ‘standing’ and priority to the mainstream oil and gas economy and, second, as a result, dismissed the inherent indigenous sovereignty that would allow indigenous governance and place higher priority on the importance of hunting, fishing and trapping activities inherently linked to Chippewas culture. Viewed through the intersection of culture and SES, the decision effectively prioritised extractive economic structures associated with a colonial state over traditional indigenous livelihoods, thus exacerbating the already low SES of the Chippewas within the dominant Canadian economy and implicitly devaluing their culture.

5.3 Geographical location: the Chippewas’ lack of (legal) relation to pristine Earth

As opined by Davis (Reference Davis2015), a figurative ‘negative space’ is created where disadvantaged people experience multiple sites of inequality. Within the Canadian legal system, a categorical approach based on singular identity markers contributed to a reduction in the Chippewas’ claims. Complex intersecting factors like culture, SES and geographical location are not fully encompassed by this relatively technocratic application of the law. For the Chippewas, this negative space has connection with the natural world, and specifically the fact that the Line 9 pipeline already existed on their traditional lands. When situated in the context of other legal and political decisions surrounding the development of pipelines, the intersection and importance of geographical location in relation to proposals concerning pipelines can be discerned. The Line 9 project arguably proceeded because of the pre-existing pipeline and the fact that its retrofitting involved very little new land (only small parcels for equipment and no extensions of the pipeline in a new direction or over territory without previous pipeline infrastructure). Set against other pipeline decisions (as well as the Chippewas’ companion case, Clyde River), we argue that considering the context of geographical location primarily in relation to an extant pipeline infrastructure reduces the claims of indigenous people. Each will be discussed in turn.

First, at the same time as the SCC determined the Chippewas’ case, the Clyde River case was also determined.Footnote ⁷¹ In this case, the NEB's authorisation of offshore seismic testing for oil and gas in Nunavut was quashed due to in inadequate consultation, even though the NEB had concluded that testing was unlikely to cause significant adverse environmental effects. The Clyde River is described on its website as the ‘Gateway to the Fiords, located on a flood plain and surrounded by spectacular fiords all the way to the Barnes Icecap and replete with whales, seals, polar bears, wolves and caribou’.Footnote ⁷² Although there are several facts that distinguish this case from the Chippewas’ case,Footnote ⁷³ it is noteworthy that this geographical location was found worthy of deep consultation by the court and that there are no existing oil and gas pipelines.

Second, the trend in recent pipeline cases suggests that old pipelines can be modified, although applications for significant new pipeline extensions into land previously untouched by a pipeline infrastructure will not be successful. In Canada, recent applications to build new, or new segments of, pipelines have met with limited success. Three prominent examples include the Northern Gateway Pipeline, Energy East and Prince Rupert pipeline, discussed in turn.

1. (1) One of the most renowned withdrawals of application from the NEB has been the Northern Gateway Pipeline, which would have linked the Alberta oil sands through a new pipeline built to the west coast, north of Vancouver. In 2016, Prime Minister Justin Trudeau cancelled the Northern Gateway Pipeline (Cheadle, Reference Cheadle2016). This cancellation occurred after the Federal Court of Appeal quashed the Order-in-Council that directed the NEB to issue a certificate of public convenience and necessity to Northern Gateway. The Federal Court of Appeal ruled that the federal government had not fulfilled its duty to consult with indigenous people.Footnote ⁷⁴ The court concluded that Canada had offered a brief, hurried and inadequate opportunity to exchange and discuss information, which ignored entire subject areas of importance to affected First Nations and that many potential impacts were left undisclosed, undiscussed and unconsidered.Footnote ⁷⁵ The timeline for the consultation had allowed only 45 days for discussions and First Nations were given only 45 days to provide their concerns in writing, with a maximum three-page limit.Footnote ⁷⁶

2. (2) In 2017, TransCanada Corp. cancelled its $15.7 billion Energy East pipeline that was planned to cut across Quebec and New Brunswick (areas with no previous pipelines) in order to provide 1.1 million barrels a day of western Canadian crude oil to eastern refineries and export terminals (McCarthy et al., Reference McCarthy, Cryderman and Lewis2017). Although TransCanada refused to provide comment on the cancellation, the decision followed an announcement on 23 August 2017 by the NEB that the assessment of the project was to be expanded to include: (1) more visibility to the evaluation of scenarios, consequences, mitigation and response to potential accidents and malfunctions; (2) upstream and downstream greenhouse-gas (GHG) emissions to determine whether the projects are in the public interest including the market impacts of GHG-reduction targets embedded in laws and policies on the economic viability of the project; (3) indigenous participation in the projects throughout their life-cycles, landowner and municipal considerations, cumulative environmental effects, as well as socio-economic elements.Footnote ⁷⁷ The decision reflects a desire to consider social costs, not just the potential for stranded assets (the usual ambit of consideration of the NEB).

3. (3) As a final example, in 2017, a TransCanada pipeline to Prince Rupert that would have been built through territory without previous pipelines was cancelled when Malaysian-state-owned Petrovas cancelled building a liquefied natural-gas plant. It is reported that a significant reason for this cancellation was that the project faced entrenched opposition from indigenous and environmental groups because of the proximity to a juvenile-salmon habitat at the mouth of the Skeena River in northern British Columbia (Morgan, Reference Morgan2017).

As many such proposals for new pipelines terminate or stall, proposed expansions of current pipelines to carry larger quantities of oil, as in the Chippewas’ case, meet with more success.Footnote ⁷⁸ Three examples illustrate this argument. (1) After cancelling the Northern Gateway Pipeline, Prime Minister Trudeau approved the Kinder Morgan pipeline expansion (joining Alberta oil sands with the south-eastern US) and eventually purchased it. The Kinder Morgan project involves expanding the already existing TransMountain pipeline.Footnote ⁷⁹

(2) In 2017, Enbridge's Line 3 Replacement Program proceeded between Alberta, through Saskatchewan and Manitoba. Most of this Line 3 replacement was constructed within the existing pipeline's current rights of way.Footnote ⁸⁰ (3) Lastly, the Keystone Pipeline has already been completed in Canada. Although, under the Obama administration, the proposed Keystone XL expansion project was cancelled, it has been resurrected by President Trump (albeit currently experiencing difficulties with the selection of an alternate route). This expanded pipeline would ship oil through southern Alberta into Montana (Mufson and Eilperin, Reference Mufson and Eilperin2017).

The Chippewas’ geographical location in the presence of existing pipelines – a factor that, we have argued, contributed to their unsuccessful claim – is the product of colonial legal mechanisms (both historical and contemporary), which have prioritised profit by the energy industry over indigenous cultures and livelihoods. From an intersectional perspective, deeply rooted power relations associated with colonisation and capitalism have produced a particular experience of inequality at the intersection of culture, SES and geographical location. As evidenced by other successful cases made by indigenous groups in locations without an existing pipeline infrastructure, the complexity of the situation cannot be reduced to a single component, such as indigeneity or geographical location alone. Indeed, intersectional analysis does not just focus on differences between identity-based groups; it can provide for cross-movement mobilisation when attention is paid to intersecting identities, interconnected power structures and the potential for solidarity and cohesion (Roberts and Jesudason, Reference Roberts and Jesudason2013). Intersectionality is based on a rejection of single-category-identity politics, emphasising instead the emergent effects of multidimensional oppression. Such emergence is seen in the case of the Chippewas, whose argument against the Enbridge expansion was based on a complex set of intersecting factors – most prominently culture, SES and geographical location – that could not be adequately addressed under categorical Canadian law. As Kimberle Crenshaw argues: