First Nations say they have the power to stop Trans Mountain expansion
First Nations say the courts, not the NEB or cabinet, will decide on the controversial pipeline
By Tracy Johnson, CBC News, May 20, 2016
The Stó:lō collective of First Nations in British Columbia is very familiar with the transport of oil. The existing Trans Mountain pipeline has crossed through their land for more than 50 years. CN Rail also carries oil by rail directly across Stó:lō territory to the B.C. coast.
So, the collective of eleven First Nations in B.C.’s Fraser Valley came to consultations with Kinder Morgan for the expansion of Trans Mountain with an open mind.
“We have taken time to speak to Kinder Morgan,” said Ernie Crey, the chief of the Cheam First Nation, a member of the collective.
“We’ve also weighed and considered a new pipe versus seeing all this bitumen moving along the rail lines straight through many of our communities. Some of the houses in our communities are literally feet from the rail line.”
But Crey said the nations were also concerned about the pipeline’s proximity to the Coquihalla River, which feeds into the Fraser River.
“The Fraser River is the most productive salmon-bearing stream on Earth and we depend on the annual runs of salmon.”
A breach of either the oil or new Trans Mountain pipeline in the summer months would be disastrous for the salmon run.
Pipe versus rail
“We weighed and considered a pipe versus all this product being moved by rail and we considered what was the wiser of two difficult choices, bitumen by rail and bitumen by pipe and we thought the safer bet might be bitumen by pipe,” said Crey.
But the Stó:lō did not sign onto the project, a sign that the consultations done by Kinder Morgan, considered acceptable by the National Energy Board, did not go far enough to convince even those who had an open mind about the pipeline expansion.The Stó:lō are not formally opposed to the project either, as one of the nations most affected by the expansion, they simply remain to be convinced.
That does not leave an easy job for three-member panel appointed this week by the federal government to further consult with communities along the route.
Crey said that representatives from Natural Resources Canada have visited the Stó:lō in recent weeks.
“They’ve made a one-time pass through our community. I’ve referred to it as a drive-by consultation,” said Crey. “I think their responsibility and duty goes much deeper to us than to send a few public officials to [a] meeting with us for an hour or two.”
Farther down the pipeline route, the Tsleil Waututh First Nation has little faith that the panel will be able to bring opponents onside.
The territory of the Tsleil-Waututh includes the Burrard Inlet, which would see increased tanker traffic if Trans Mountain is approved. The First Nation is steadfastly opposed to the project and plans to challenge it in the courts.
“They did that NEB process in 25 months,” said Rueben George, a spokesman for the Tsleil Waututh. “And you’re going to try to take care of that big mess in four months, that’s ridiculous.”
Consult or consent?
George said that the legal landscape has changed for First Nations and resources development.
“First Nations are winning 97 per cent of our court cases around resource extraction. That’s 170 legal cases in the last couple years. That’s a lot of veto power right there.”
The most significant case fought by First Nations was decided in June, 2014, by the Supreme Court of Canada, which ruled that provincial and federal governments must win consent of Aboriginal groups when regulating economic activity on titled lands, unless it can show a pressing public need for that activity.
That case was brought forward by the Tsilhqot’in nation in response to clear-cutting of trees on its territory. Since the decision, there has been a shift in which First Nations now feel that the duty to consult means corporations and government really need to seek consent.
“We’ve been doing the traditional ‘duty to consult’ types of processes for 10 or 15 years,” said Bruce McIvor, a lawyer with First Peoples Law.
Courts will ultimately decide
“But since the Tsilhqot’in decision in 2014 and the full adoption of UNDRIP [The United Nations Declaration on the Rights of Indigenous Peoples] by the federal government, we’re moving out of that need-to-consult type of process and we’re moving toward consent-based consultation. That’s where we’re going.”
McIvor said the National Energy Board decision yesterday, or the final decision by cabinet in December, will not be the last word on Trans Mountain.
“The process that the NEB went through will be reviewed by the courts and if the courts find that it doesn’t live up to the government’s obligations under Section 35 of the constitution, it has a wide latitude to null the decision to tell them to go back and do it again.”