RAVEN - Respecting Aboriginal Values and Environmental Needs

The Legal Low-down Behind Squamish Nation’s Court Case against TMX

The Squamish Nation is a Coast Salish Nation whose territory includes Burrard Inlet, English Bay, Howe Sound, the Squamish Valley and north to Whistler.

The Trans Mountain Expansion calls for new pipeline routes through Squamish Territory, 13 new tanks and one replacement tank at the Burnaby Terminal, the dismantling of the current Westridge Marine Terminal and the building of an entirely new, much larger marine terminal, and at least a seven-fold increase in tanker traffic per month to travel past Squamish reserves and through to the Salish Sea.

The Project poses a serious threat to Squamish’s home, to their continued reliance on the marine and aquatic environment for the practice of their rights, and to the survival of the Southern resident killer whale – a species of cultural and spiritual significance to the Nation that is recognized to be in a critical state.

The Squamish assert a strong claim to Aboriginal rights, including title and self-governance rights, within the areas to be impacted by the Project pursuant to s. 35(1) of the Constitution Act, 1982. Further, since a time before contact with Europeans, Squamish regularly travelled to and fished in the Fraser River and they assert Aboriginal rights to fish in the Fraser River, including at its mouth and on its tributaries. The Squamish continue to occupy, and be stewards of their territory, including the Capilano River at the entrance of Burrard Inlet, Seymour River, the Fraser River, and Howe Sound. These lands, waters, resources and activities are central to their way of life, culture and identity.

Canada has consistently acknowledged that it owes Squamish a duty to consult at the “deep” end of the spectrum. The Squamish assert that the Crown’s duty in this case is particularly onerous given the proximity of Trans Mountain’s marine terminal to Squamish reserves and the fact that diluted bitumen-laden tankers will pass through Burrard Inlet in front of three of the reserves, each of which stands to be catastrophically affected by a spill.

The Squamish state that Canada approached consultation with a predetermined outcome. Throughout the consultation process, despite Squamish’s efforts, there was no real dialogue with Canada about the substance of their concerns, engagement with their concerns or effort to address their concerns.

Squamish allege that Canada breached its obligations to Squamish in several respects including: failing to engage on issues of concern, including relying on the National Energy Board’s generic assessment of Indigenous impacts that did not specifically consider Squamish; withholding or delaying production of highly relevant information until late into the consultation process, thus negating any possibility of a meaningful dialogue on that information; unilaterally determining and relying on accommodation measures that were generic, undeveloped, and not specific to Squamish’s concerns; and rushing the consultation process with a pre-determined outcome.

When Squamish raised very specific, focused concerns about gaps in the 2019 National Energy Board’s assessment of the Project, including a significant information gap concerning the behaviour of diluted bitumen in water, Canada responded with generalities which did not address Squamish’s specific concerns. Other significant information gaps that Squamish raised and Canada failed to address, include the lack of resources to respond to a diluted bitumen spill that sinks, including in the fast-moving waters of the Fraser River; the feasibility of mitigating the significant adverse effects of marine shipping to the Southern Resident Killer Whales; and baseline information about the current cumulative effects impacting the Salish Sea and whether the Salish Sea can withstand the additional effects of the Trans Mountain expansion.

 

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