(PV Staff, with files from Tsleil-Waututh Nation Sacred Trust)
Representatives of Indigenous communities fighting the Trans Mountain pipeline and tanker project (TMX) in the Federal Court of Appeal (FCA) gathered on December 16, the day before hearings began, in a demonstration of unity and resolve to have the Courts once again quash Canada’s approval of the controversial project.
The FCA heard from four First Nations who are challenging the federal government’s June 2019 re-approval of the TMX. As with the August 2018 Tsleil-Waututh vs. Canada decision, this case has the potential to delay pipeline construction by quashing Cabinet’s approval.
The First Nations involved in the challenge include the Tsleil-Waututh Nation (TWN), Squamish Nation, Coldwater Indian Band, and the Ts’elxwéyeqw Tribes – a group of seven Stó:lō bands with territories near Chilliwack.
One major difference in this round of consultation is that the federal government is now also the owner of the TMX. When Houston-based Kinder Morgan, faced with decisive opposition from First Nations, decided to abandon the project in 2018 the Trudeau government intervened and purchased the pipeline for $4.5 billion.
The purchase was a dramatic act of dispossession of Indigenous peoples’ control over their territory, proof again that policies of colonialism are still key to the role of the state’s apparatus in producing and reproducing capitalism in Canada.
The four First Nations point out that the government purchase put them in a challenging position, “as decision makers, as project proponents and as fiduciary to the First Nations. As a result, many of the First Nations argue that the consultation efforts were not approached with an open mind, and that approval was a foregone conclusion, making the consultation a box-ticking exercise.”
The First Nations argue that consultation once again fell below the mark set by the Supreme Court of Canada. They charge that the consultation was poorly organized and rushed and did not engage substantively with First Nations’ focused and specific concerns nor address those concerns through mitigation and accommodation.
According to Chief Leah George-Wilson of the Tsleil-Waututh Nation, “Federal officials altered Canada’s peer reviews of the science, which largely agreed with TWN expert reports that there is a lack of information about diluted bitumen, its behaviour and effects. That is not honourable consultation. It appears as though their minds were closed to anything other than enthusiastic approval.”
Squamish Nation Councillor Khelsilem warned, “The TMX Project is still a threat to our coastline and community in the case of a pipeline leak or tanker spill. This project will harm our communities, our people, and the jobs our people rely on in the Vancouver area. Canada was ordered to try again at meaningfully consulting with our Nation but treated us with the same contempt as the first time when the Courts said their attempt “fell well short of the mark.” The Trudeau government does not seem to understand what respecting Indigenous rights means. Consultation was rushed the first time and it was rushed again despite the Federal Court of Appeal’s decision. It is of utmost importance to our Nation that the court ensures that Canada complies with its obligations to uphold our Nation’s rights.”
The TMX pipeline purchase was a dramatic act of dispossession of Indigenous peoples’ control over their territory, proof again that policies of colonialism are still key to the role of the state’s apparatus in producing and reproducing capitalism in Canada.
Chief Lee Spahan of the Coldwater Indian Band also noted the federal government’s repeated failure to respect Indigenous rights. “Last year the Court found that Canada failed to provide certainty that our concerns about risks to our sole source of drinking water would be addressed. Despite our sincere effort to find solutions, the Crown has managed to create even more uncertainty about how and whether our drinking water will be protected for generations to come. Once again we have been forced to return to court to try and protect our reserve drinking water.”
The FCA granted leave to the four First Nations on September 4 but limited the grounds of appeal to the re-initiated consultation efforts by the federal government. That September leave decision was appealed to the Supreme Court of Canada (SCC) in November by Tsleil-Waututh and Squamish as well as three environmental groups who were excluded from the present FCA case. The SCC has not yet ruled on the leave applications.
The Tsleil-Waututh Nation Sacred Trust initiative is mandated to stop the TMX project. The Sacred Trust stresses that each First Nation’s legal challenge is based on unique facts relating to their specific territory, rights, and title. “This raises an independent duty for Canada to consult and accommodate each individual First Nation. In other words, the extent and content of consultation are specific to the facts and circumstances for each First Nation and satisfying the duty to consult and accommodate one First Nation does not guarantee that the duty has been fulfilled for another. Success on any one of the First Nations’ legal challenges could delay the project.”
The Supreme Court of Canada (SCC) states that the federal government’s responsibility to consult “imposes on it a positive obligation to reasonably ensure that aboriginal peoples are provided with all necessary information in a timely way so that they have an opportunity to express their interests and concerns, and to ensure that their representations are seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action.”
However, the First Nations’ legal arguments demonstrate that this duty was not met during the latest round of consultation:
“The federal government failed to meaningfully engage with and address specific and focused concerns repeatedly raised by First Nations, resulting in a breach of Canada’s constitutional duty to consult and accommodate.
“Consultations were once again rushed on a unilaterally-imposed timeline.
“The federal government did not engage in consultations with an open mind: as the proponents of the project, the decision to approve did not appear to be in question.
“Accommodation measures were generic and proposed before First Nations had the opportunity to fully list their concerns. Those measures did not change following the consultation period.
“The federal government initially denied the existence of its own peer review documents of Tsleil-Waututh and Squamish expert reports which largely agreed with the First Nations’ conclusions. Later, the government withheld the documents from the First Nations and finally, provided altered versions. Only after the approval on June 18 were the Nations provided with the original peer review documents, which confirmed that the government staff agreed with the Nations’ expert reports about the lack of information regarding the fate and behaviour of a diluted bitumen spill in the Salish Sea.
“In Coldwater’s case, the consultation process resulted in a weakening of the previously approved conditions by imposing a new timeline to complete a hydrological study of Coldwater’s aquifer and failed to address the flaw found by the Court that Canada failed to consider additional measures to address Coldwater’s concerns about risks to their drinking water.
“The Ts’elxwéyeqw Tribes have already confirmed fishing rights at Supreme Court of Canada (SCC) in waters directly affected by the project, but the Tribes were consulted as if those rights were not confirmed, and there was no justification of the infringement of these confirmed rights. There was also no implementation of any of the Tribes’ 89 recommendations.”
Predictably, the federal government’s arguments attempted to diminish the First Nations’ concerns. Regarding the withheld documents, for example, the government stated that these were “internal notes” which the First Nations had no right to review. The objections of the Coldwater Band were brushed aside as “historical grievances” that had nothing to do with the current project, but which demonstrated Coldwater’s “lack of meaningful engagement with Canada.”
If built, TMX will increase the amount of tarsands crude oil traveling through BC water from approximately 60 tankers a year to over 400. Notably, however, the First Nations argue that there is no economic need for the project. The pipeline is not intended to meet the energy needs of the Lower Mainland or British Columbia, and the crude oil that it will carry is for export and will not be refined in Canada. Outside of private corporate profits, there is no compelling economic justification for TMX.
The FCA heard all arguments between December 16-19 and has adjourned to deliberate; a decision is expected soon.
Perhaps prophetically, Chief Justice Marc Noël summarized the antagonistic nature of the proceedings: “It feels like an acrimonious divorce. Obviously, there’s a lot of tension here.”
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