Was it only two years ago that Canada promised to develop legislation to implement the UN Declaration on the Rights of Indigenous Peoples? Just three years since Prime Minister Trudeau declared that no relationship was more important to this country than the one with Indigenous Peoples? And has it really been five years since people living on reserves were promised they would no longer need to boil their water to make it safe for drinking?
Oh, but we’re a forgetful nation. Soon, we may forget that it was only yesterday that the Section 35 rights of Indigenous Peoples were pushed aside to usher a pipeline across unceded territory.
Such forgetfulness is how we can have a Canada Day celebration one day, and the next we can strike down the rights of those whose laws, customs and culture stretch like roots beneath the land and waters of this “home on native land.” It’s how symbolic gestures can resonate prettily — witness Mr. Trudeau, taking a knee — while our judiciary, long a tool of systemic discrimination, persists in the continuation of our 150-year history of denying Indigenous rights.
“For us, water is life.”
Others have summarized their disappointment in the face of the Supreme Court’s refusal to hear Coldwater, Tsleil Waututh and Squamish Nations’ appeal of the Federal Court’s ruling on the Trans Mountain consultation. But take a moment and trace a line from what was supposed to be our “most important relationship”, to what the promise of “clean drinking water” has become.
Let’s examine that route, not through lofty sentiments, but by way of plain evidence.
The Coldwater Indian Band is situated 270 km northeast of Vancouver. The sole source of drinking water for 90% of the community, the Coldwater valley was also deemed “the best possible route” by Trans Mountain when they were siting their 1150 km-long pipeline. In fact, for both Trans Mountain and its predecessor, Kinder Morgan, it became “our way, not the highway” as they adamantly refused to even consider a simple alteration of a few kilometers that would have made all the difference to Coldwater.
“For us water is life.”
It’s a profound truth that Chief Lee Spahan has patiently stated, first in hearings of the then-National Energy Board, and, later, in courtrooms where he worked to uphold a mandate to protect his community’s laws and well-being. As a result of his efforts, protecting the aquifer became one of 157 conditions imposed on the project by Canada’s energy regulator.
Yet: more than 8 years after bringing these concerns to government and industry tables, Coldwater are no closer to understanding why alternative routes have not been adopted. The Federal Court of Appeal overturned Coldwater’s case in February 2020, despite evidence it was presented showing that Trans Mountain had reneged on a commitment to complete a study of the Nation’s aquifer before settling on the route through the Coldwater Valley.
In a July 2, 2020 statement on the Supreme Courts’ refusal to consider an appeal, Chief Spahan remarked that “if Canada continues to fail us, and if Trans Mountain refuses to move their Project out of the recharge zone of our aquifer, we may be forced to go back to court.”
Even though Chief Spahan showed up at every meeting, sat through countless regulatory processes and launched judicial reviews to defend his community’s drinking water, in the end he and his people are still being met with indifference and inaction.
Referencing Indigenous Nations’ ‘disappointment’ with the outcome of legal challenges so far, Natural Resources minister Seamus O’Regan said solemnly, “we see you, and we hear you.”
Sure we do. We just won’t heed you.
For Coldwater, the road to reconciliation, though paved with good intentions, is rutted and potholed, cratered by the same flagrant neglect that has kept Indigenous Peoples thirsting for generations.
Certainly, to undertake the transformation of colonial institutions is a heavy lift.
Since the duty to consult and accommodate First Nations’ rights was enshrined into Canada’s Constitution, countless studies have pointed to the need to retool our justice system to avoid an endless — and expensive — cycling of Indigenous rights claims through the country’s courts.
In the 1970’s, Thomas Berger’s Mackenzie Valley inquiry recommended a ten-year moratorium on pipeline construction. The landmark report identified an urgent need to deal with deep underlying issues of sovereignty, land claims and consultation before major infrastructure projects could be embarked upon. Fast forward through half a century of inaction, and the lump under our collective carpet has become a volcano. As anyone watching the Wet’suwet’en uprising this winter may have noticed: neglect them long enough, and those ‘underlying tensions’ have a tendency to erupt.
When Jody Wilson Raybould was appointed Justice Minister, she adopted a mandate to pass legislation that would enshrine the right for Free, Prior and Informed Consent of Indigenous Peoples into law. She aimed to pass “new legislation that would … recognize rights, support Indigenous self-government, create pathways out of the Indian Act, and help Indigenous peoples rebuild their Nations and governments.” Writing in the Globe and Mail, Raybould recently lamented that “Time and again … ineffective baby steps were privileged over transformative efforts to address Canada’s colonial legacy… Too often, political expediency triumphed over bold and necessary action.”
While Canada procrastinates, Indigenous Nations have shown their readiness to do the work that true reconciliation demands. Their own laws emphasize the importance of healing relationships to bring the worlds — natural, political, and social — into balance.
As Tsleil Waututh Chief George Wilson pointed out, “We’ve always come to the table with our sleeves rolled up. We’ll always be ready to work with our family nations — Squamish, Coldwater, whoever — and we’ll always work with government. But we need to see some action.”
That action could look something like : ‘We see you, we hear you. And: we have sought your consent before taking decisions that will forever change your unceded territory.’
Isn’t that how you’d treat your most important relations?
Putting the ‘wreck’ in reconciliation
In assessing the value of so many years of legal work on TMX by her Nation, Chief George-Wilson, herself a lawyer, cited the many reports commissioned — and paid for — by Tsleil Waututh Nation. She referenced evidence collected by international experts that corroborated the concerns of Indigenous Peoples, weaving together scientific, cultural, and Indigenous legal frameworks.
Yet, the Federal Court of Appeal court took such a narrow view of ‘consultation’ that they scarcely considered this evidence, or took the time to unpack the bigger questions around project risks. Instead of examining the government’s consultation record and making a judgment on the facts, as per established practice, the Federal Court of Appeal simply took the government’s word for it that consultation was adequate. And the Supreme Court of Canada, the guardian of the Constitution, declined to even hear an appeal.
No explanation was given for the dismissal, but First Nations were quick to weigh in on the implications. Says Chief George-Wilson. “This case is about more than a risky pipeline and tanker project; it is a major setback for reconciliation. It reduces consultation to a purely procedural requirement that will be a serious barrier to reconciliation.”
Rooted in resilience, Nations persevere
Still, the Nations who should be most enraged and discouraged by the Supreme Court’s dismissal are looking to the future with determined conviction. Although the July 2nd decision marks the end of the road for this particular legal challenge, First Nations have vowed to explore all legal options to protect their rights, land, water and climate.
Eugene Kung, lawyer for Tsleil Waututh, muses that “progress rarely happens in a straight line.” Citing the case against Jumbo Pass resort, which initially lost in court but was later cancelled, he explains: “This is a setback, but the direction we are going and how far we’ve gone already represents a lot of progress.”
Former Chief Charlene Aleck agrees. “It is sad the court wasn’t in our favour, but I think it’s just a speed bump, a hiccup. I feel really confident in all the strength we have, in the work we’ve done: it gives so many other Nations hope that we will be able to maintain our Indigenous way of life, in Canada.”
Aleck goes on to express her appreciation for non-Indigenous peoples who stood up on behalf of her Nation. “Thank you for advocating for us. Especially the future generations: they have that undeniable belief that we will find our way. From the bottom of our hearts, thank you for your voice. And I believe in all of you!”
The Pull Together movement grows on
Everyday citizens, working under the banner of “Pull Together”, collectively raised over a million dollars for Indigenous legal challenges. Those expert reports, the mountains of evidence, and the power generated by that popular movement in support of advancing Indigenous rights will continue to influence the conversation and shape our common future.
“The whales are coming back. The herring is coming back,” says Chief George-Wison. “We will continue to do our important work to uphold our obligations as Tsleil-Waututh Nation people — we will uphold our law. We are not deterred. And we are exploring all legal options available. This is NOT the end of our story,”
Chief Spahan concurs. “Despite today’s decision, there are further legal actions we can take if our water isn’t protected.” That his community’s struggle had to be carried out in court is a taint on the notion of ‘reconciliation’. Yet: that THIS community — you, and thousands of people like you — saw fit to step in where Canada failed, gives us reason for hope.
Coast protectors will never give up on the struggle to defend rights and protect water, land and air. It is an honour to walk alongside Indigenous peoples whose commitment to upholding their stewardship duties is unassailable.
Want to know what the next steps are to fight TMX? Join the “Folk That Pipeline” online festival on July 16th.