What you need to know about the legality around Indigenous rights and the Trans Mountain Pipeline Expansion project.
On what legal grounds are First Nations challenging the 2019 approval of the Trans Mountain pipeline and tankers project?
In the original NEB process, and subsequent Crown consultation, several First Nations advanced grave concerns regarding the project’s impact on spiritual and historic sites, key species such as Southern Resident Orcas, fish and waterways, and other environmental impacts including oil spill risks and climate change. After the Federal Court of Appeal quashed the project in August 2018 due to flawed consultation with First Nations, the federal government was sent back to the drawing board to redo consultation in a way that meets the standard set by the Supreme Court of Canada.
Canada rushed the new round of consultations to meet the federal cabinet’s self-imposed deadline of June 18, 2019 for a project decision. Not surprisingly, the First Nations at the other end of this hasty exercise found it failed to address their concerns in any meaningful way. The NEB took a narrow approach to the Reconsideration Hearing by excluding consideration of any matters related to the need of the project or the project economics, despite the fact that the evidence before it regarding those matters was unreasonably out of date, and yet essential for the proper application of the public interest and justification analyses as required by Canada Environmental Assessment Act (CEAA).
Legal grounds include constitutional violations, primarily around the failure to satisfy the duty to consult, accommodate and seek consent from First Nations. Some Nations are also raising regulatory legal errors by the National Energy Board.
Tsleil-Waututh Nation (TWN)
Tsleil-Waututh means “people of the inlet” in Halkomelem. This name reflects TWN’s deep geographic, physical, cultural and spiritual connection to Burrard Inlet. TWN’s primary community is reserve #3, directly across the Inlet from the Westridge Marine Terminal on the south side of the Inlet. The increase in marine traffic associated with the project would unfold directly offshore from TWN’s primary community, within the waters that are its traditional source of harvesting, and over which it has a strong claim to Aboriginal title. Canada has consistently stated that TWN is owed “deep” consultation regarding the project.
In its notice of motion for a judicial review, Tsleil-Waututh Nation argues that the approval of TMX by Order in Council unreasonably infringes proven Tsleil-Waututh title and rights in eastern Burrard Inlet, and permits future infringements of those rights, where there is no clear, compelling or substantial public interest objective associated with the project.
“The federal government has again failed to respond to the concerns we have been raising in regards to this project. This feels like déjà vu. We have no choice but to appeal again and we expect the same results – the approval of the Trans Mountain pipeline will be overturned.” – Chief Leah George-Wilson, Tsleil-Waututh Nation
In the view of Tsleil-Waututh Nation, the 2019 round of consultation did not address specific concerns raised by TWN since the beginning, including the impact of marine shipping on Southern Resident Killer Whales and the cultural relationship between TWN and the whales. Furthermore, Tsleil-Waututh argue that the NEB re-consideration hearings wrongly excluded an assessment of the need for the project and its socio-economic effects, despite the fact that the evidence before it regarding those matters was unreasonably out of date, and yet essential for the Board to properly assess whether the project is in the public interest.
The NEB Board unlawfully scoped out project-related marine shipping activities in Canada’s Exclusive Economic Zone from consideration. The Board did so in contravention of the terms of CEAA which it chose to disregard given the short timeline for reconsideration, and despite TWN having advised the Board that Canada had recently expanded the critical habitat of Killer Whales into EEZ. TWN emphasized to the Board that the exclusion of project-related marine shipping in the EEZ would give the GIC an incomplete view of the project’s environmental effects, including on Souther Resident Killer Whales, their SARA-protected habitat in the EEZ, and TWN’s related concerns regarding cultural use.
“It would be unfathomable, for example, to attempt to justify significant adverse environmental effects of a Project for which there was no need, that would provide limited economic benefits, or on the basis of stale-dated evidence.” (Tsleil-Waututh submission to NEB, October 3, 2018, as quoted in the Affidavit of Ernie George)
Tsleil-Waututh Nation is concerned that the governor-in-council had publicly demonstrated actual bias in favour of project approval. Tsleil-Waututh argues that Canada actively took steps to conceal evidence indicating that its own scientists concurred with Tsleil-Waututh experts on matters of central concern, including the sinking of bitumen in saltwater; the inadequacy of TM’s risk assessment for oil spills; and oil spill response planning. Canada only revealed this evidence to the Tsleil-Waututh after consultation had concluded.
For most of its route, TMX follows the existing pipeline route. This is not the case in the Coldwater River valley which is home to the Coldwater Indian Band, a member of the Nlaka’pamux Nation. There, the route has been approved to run through a new corridor just outside the eastern edge of the Coldwater reserve, through what appears to be the recharge zone of an aquifer that is the sole source of drinking water for 90% of Coldwater residents.
Coldwater is known in Nlaka’pamux as Ncletko, meaning “people of the creeks.” The two creeks that feed the aquifer, Kwinshatin and Skugam, have cultural and spiritual significance to Coldwater people. Both those creeks and Coldwater River are used for spiritual bathing and for sweat lodges. One Coldwater elder testified that they are equivalent to going to church, helping to cleanse one’s body, mind and spirit. Coldwater members continue to practice an annual round, engaging in important cultural and economic activities like fishing in local rivers, harvesting plants and medicines, cultivating the land, and hunting.
Coldwater is very concerned about the impacts and risks of the project, and in particular the now-approved route, on their sole source of drinking water. Coldwater’s frustrations with the Government of Canada are also exacerbated by unresolved issues related to the existing pipeline corridor – which runs directly through the Coldwater community, within meters of members’ homes. In 2017 the Federal Court of Appeal set aside Canada’s authorization of the right-of-way for Trans Mountain through the reserve, on the basis that the Minister failed to meet his fiduciary obligation to act with reference to Coldwater’s best interests in approving that transaction. Despite the passage of almost two years since that decision, Canada’s breach of fiduciary duty in respect of the existing Pipeline remains unaddressed by Canada. The existing pipeline has also resulted in contamination of Coldwater lands, which still have not been remediated years later. It is possible that this contamination has travelled into the groundwater resources, but this potential contamination has yet to be evaluated by Trans Mountain or Canada.
Coldwater asserts that the project as proposed creates an unacceptable risk to their sole source of drinking water. Following the Court decision quashing the project in 2018, Canada committed to Coldwater to have meaningful dialogue on routing and the aquifer in 2019.
Canada’s decision to approve the project including the eastern route, without essential information required to assess the risk to Coldwater’s drinking water, is contrary to both Canada’s fiduciary obligation to protect the band’s interests, and to its duty to consult and accommodate in respect of the project. Canada’s conduct falls well short of the honour of the Crown.