It was an emotional day. While the messages were sombre, the feeling was overwhelmingly positive as Nations stood together to have their cases heard before the Federal Court of Appeal.
On December 16th, representatives of Indigenous communities fighting the Trans Mountain pipeline and tanker project (TMX) gathered in a demonstration of unity and resolve. Their goal? To have the Courts once again quash Canada’s approval of the controversial project.
Rueben George opened the press conference, saying,
“Here we are again. August 2018 the courts quashed the trans mountain pipeline expansion and here we are again. First Nations have won over 250 legal victories over the last 3-4 years against resource extraction projects. Here is our leadership that makes decisions for our people in accordance to our law, which for thousands of years we have been making decisions like this because of our reciprocal relationship of spirit to the lands and the waters protecting what we love, protecting the lineage of where we come from. We will continue to make decisions for our future generations because this present government isn’t capable of doing that so we are making choices for their future generations as well. We come here again, united, to stand up and fight for what we believe in, by any means possible.”
The FCA will hear from First Nations who are challenging the June, 2019 Federal Cabinet re-approval of the TMX. The case has the potential to delay pipeline construction by quashing Cabinet’s approval as they did in the August 2018 Tsleil-Waututh vs. Canada decision.
Chief Leah George stated: “Today we argue that the federal government’s approval of the pipeline is unlawful and must be quashed. Tsleil-Waututh was extremely troubled to learn that Canada had suppressed and then altered scientific peer reviews of our expert reports on diluted bitumen. Tsleil-Waututh had commissioned scientific reports from world leading experts which concluded that there is insufficient information on the behavior of diluted bitumen to adequately address the risk of oil spills and clean up.
Continues George, “TWN persistently asked Canada throughout consultation to find us any peer reviews of our findings or scientific studies. The federal government initially denied the existence of its own peer reviewed documents of Tsleil-Waututh and Squamish expert reports which we found out later their experts largely agreed with our conclusions. The government withheld these documents and finally after the close of consultations provided versions that we later found out were altered.”
In what might be the smoking gun that reveals Canada’s disingenuous engagement with First Nations, George went on to say that,”Only after the approval on June 18 were we provided with the original peer reviewed documents which confirmed that Canada’s staff agreed with Tsleil-Waututh’s expert reports about the lack of information regarding the fate and behavior of diluted bitumen in the Salish Sea.”
“Canada was not responsible to Tsleil-Waututh specific concerns we have been raising consistently since 2014. Concerns include that oil spills are inevitable and cannot be effectively cleaned up, a worst case scenario spill would have devastating effects on the Fraser River estuary and Burrard Inlet Tributary with ecological collapse. The project would pose devastating impacts to our killer whales and our fundamental spiritual and cultural relationship with them.The project infringes on Aboriginal rights and title, including our ability to practice our culture and ensure future generations can use and enjoy our territory. Canada came to the consultation table with predetermined measures before we set out our concerns, those measures did not change after consultation which means they were not responsible to our focused and specific concerns. We participated in consultation in good faith again but Canada made clear they are the owners of the project. We argue today that once again consultation missed the mark set by the Supreme Court of Canada.”
The First Nations involved in this week’s hearings include the Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band, and the Ts’elxwéyeqw Tribes – a group of seven Stó:lō bands with territories near Chilliwack.
The First Nations all argue that consultation once again fell below the mark set by the Supreme Court of Canada. Nations argue 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.
One major difference in this round of consultation is that the federal government is now also the owner of the TMX. This put them in a challenging position: as decision makers, as project proponents and as fiduciary to the First Nations. As a result, each 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.
“Last year the Court found that Canada failed to provide certainty that our concerns about the impact of the pipeline affects on our community’s sole source of drinking water would be addressed. Despite our sincere effort to find solutions, the Crown has instead managed to create even more uncertainty about how and whether our drinking water as well as the source of much of our traditional foods. Our health and our way of life are threatened by Kinder Morgan. Water is life. It will be protected. The consultation process was flawed” said Chief Lee Spahan, Coldwater Indian Band. “Once again we have been forced to return to court to try and protect our drinking water”.
The full-day hearings began Monday, December 16 at the Federal Court of Appeal in Vancouver, and are expected to run through Wednesday, December 18th.
Thanks to donors, fundraisers and event organizers, the Pull Together community has raised $325k to support Indigenous Nations’ legal defence costs. It’s humbling and overwhelming to have the support of thousands of people across North American who share concerns about the environment, Indigenous rights and livelihood and our collective wellbeing, all under threat by the Trans Mountain Pipeline and Tanker Expansion Project.
Eugene Kung of West Coast Environmental Law says,
“When the Pull Together community organizes to raise funds and show up in support of First Nations legal challenges, anything is possible. Litigation can be a long, technical and alienating process, but the support and solidarity of the public through financial resources and standing together in courtrooms and on the streets shows that Pull Together recognizes that upholding inherent Indigenous human rights and protecting the environment is for the benefit of everyone — for generations.”