Trans Mountain pipeline: First Nations remain divided

Indigenous question looms as court challenge overshadows Kinder Morgan project

This is the third story in a five-part series on the issues surrounding Kinder Morgan’s proposed expansion of the Trans Mountain pipeline, investigating the history, science, Indigenous reaction, politics and economics of the controversial project. Read part one and part two.

Jason Victor is an electrical contractor based in the green hills of the Fraser Valley. Entering his 40s, he is the father of young children. Victor is familiar with the struggle of making ends meet and not shy about his desire to create a better life for himself and his family. When he looks at the Trans Mountain pipeline project, he sees opportunity.

Joe Martin lives on the rugged west coast of Vancouver Island. An artist and a boat-builder, he and his large extended family have roots around Tofino that stretch well beyond his 65 years. The natural beauty of his home is more than a place to Martin – it is central to who he is. And when he looks at the Trans Mountain pipeline project, he sees risk. Two British Columbians; two completely different, yet understandable points of view.

Their contrasting outlooks demonstrate that First Nations people are no more united about the pipeline than people of any other race or cultural heritage.

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Environmental safety, economic well-being and political necessity are the three most prominent battlegrounds upon which the Trans-Mountain pipeline debate is staged.

The “First Nations question” overshadows all three — a wild card based on the constitution and the authority a series of court cases have confirmed for B.C.’s Indigenous people. It doesn’t give First Nations the power to veto the pipeline — or any other similar project — but it does insist they are properly and thoroughly consulted, and that their opinions are taken into account.

“The common law duty to consult doesn’t use the word veto, it uses the word consent,” said Merle Alexander, a partner with the B.C. firm Miller Titerle. “The main issue is ‘was the appropriate level of consultation fulfilled?’”

Alexander is a specialist in Indigenous resource law. He’s worked on behalf of bands that have negotiated agreements with Kinder Morgan and on behalf of First Nations involved in a judicial review before the federal court of appeal aimed at stopping the pipeline.

Aboriginal title, justifiable infringement on that title, adequate consultation and consent are all concepts recognized by the courts, but each continues to be more clearly defined through repeated court challenges.

Chiefs and leaders argue in favour

The sensitivity of Aboriginal rights and the lack of clarity in the law explains the considerable effort Kinder Morgan has put into discussing the project with First Nations people, no matter how far away they may be from the pipeline and tanker routes.

The company reports that after years of talks, it has signed 33 Mutual Benefit Agreements with B.C. Aboriginal groups and another 10 in Alberta. It says these deals are expected to provide in excess of $400 million to those groups.

READ MORE: Indigenous leaders pitch sustainability to Kinder Morgan shareholders

“We have support from First Nations communities whose reserve lands we intend to cross,” reads a statement on the company’s website. “Trans Mountain is working to identify Aboriginal, regional and local capacity, and our primary objective is to maximize economic opportunities that will arise from the project.”

Calling those agreements confidential, Kinder Morgan has declined to discuss details publicly. However, some bands have been comfortable sharing.

“After seeing what’s out there in the media, council decided that it’s important we speak out,” said Nathan Matthew in a late-April media release.

Matthew is the chief of the Simpcw First Nation, based in Chu Chua, about 70 kilometres north of Kamloops. Simpcw traditional territory ranges all the way into Jasper, Alta. About one-third of the pipeline runs through land to which it holds Aboriginal title.

Matthew said two years of diligent negotiation and environmental review went into their Mutual Benefit Agreement. He believes it protects the land and the people. It was ratified in a referendum that saw 78 per cent of voters in favour.

“If the project does not go ahead, we will lose out on opportunities that we have been working hard at obtaining in the last year or so,” said Don Matthew, a Simpcw councillor. “We have dedicated time and resources towards this project and there would be a negative impact if this project were to go away.”

The Matthews are among a handful of First Nations leaders to speak out in favour of the project in recent weeks in an admitted attempt to combat public perception that First Nations are generally opposed.

Prominent among them is Ernie Crey, outspoken chief of the Cheam band, based near Chilliwack.

Crey has been vocal in the media and on Twitter, suggesting the environmental movement is misrepresenting First Nations interests to further its own agenda.

Ernie Crey was elected as Cheam First Nation’s new Chief last Thursday in the band’s all-day election. (Black Press Media)

“My advice to First Nations is be watchful of environmental groups who want to “red wash” their agendas under an Indigenous flag. Trust me, their goals and aspirations are far different than ours. Check out where they’ve trashed Indigenous economies to meet their ends,” he tweeted April 13.

He followed that up with this April 29 tweet: “According to them, the red man should only be allowed to make a living with the stamp of approval from ‘green people.’ ”

Chiefs and leaders opposed

Crey’s stridency is matched by the other side.

The Union of BC Indian Chiefs is a coalition dedicated to protection and implementation of Aboriginal rights and title. Its president, Grand Chief Stewart Phillip has called the pipeline a “ticking, highly toxic time bomb.”

UBCIC leadership was on the front lines at the protests and blockades that preceded Kinder Morgan’s April 8 announcement of a May 31 deadline for bringing the province of British Columbia on board with the project.

“When people unite and work together to protect Indigenous title and rights and the environment, and to stop climate change, we can win,” Phillip said. “The proposed Trans Mountain Expansion project is coming to a screeching stop and we will be there until the end. This ill-conceived dirty oil pipeline will never be built.”

Environmental concerns sit at the heart of the pipeline resistance movement — a desire to move away from the “dirty” energy of oil and toward cleaner sources, while focusing on the preservation and restoration of natural eco-systems.

Opponents aren’t just concerned with the spill risk, they’re concerned about what expanded fossil fuel use represents. The Tsleil-Waututh First Nation, whose traditional territory is home to the pipeline’s Burrard Inlet port and terminus, has been among the project’s most united and vocal opponents. It has launched the Sacred Trust Initiative, dedicated to stopping it.

Central to its concerns is the protection of water — both along the coast and along the pipeline route inland — and the eco-systems it supports. Based on its own research (challenged by the oil industry), it questions the economic benefits of the pipeline, worries about the risks associated with increased tanker traffic and believes there is about a one-in-three chance of a significant spill over the next 50 years.

Rueben George, Project Manager for the Tsleil-Waututh Nation Sacred Trust Initiative, speaks as First Nations and environmental groups speak about a federal court hearing about the KinderMorgan Trans Mountain pipeline expansion, during a news conference in Vancouver on October 2, 2017.(Darryl Dyck/The Canadian Press)

Chief Maureen Thomas spelled out her people’s position in a Feb. 6 statement.

“Our assessment report, grounded in TWN law and backed by research from leading experts has confirmed that these risks are unacceptable. Based on the undeniable jeopardy we would be placing our inlet, the people and creatures of the inlet, the surrounding communities, as well as, in fact, the global community, TWN has denied its free, prior and informed consent.

“Tsleil-Waututh Nation are the People of the Inlet and it is our sacred obligation to protect the water. In our varied opposition to Kinder Morgan, we are many people paddling different canoes in the same direction,” Thomas continued. “I look forward to a day, in the not too distant future, when we can all more actively collaborate on the restoration of local ecosystems and on new economic opportunities. We do not need the risks.”

Chiefs and leaders argue in court

The Tsleil-Waututh (North Vancouver), Squamish, Coldwater (Merritt), portions of the Sto:lo (Fraser Valley), Upper Nicola (Merritt), and Stk’emlupsemc Te Secwepemc (Kamloops) First Nations are part of the court challenge claiming the National Energy Board process that led to the pipeline’s approval in November of 2016 was flawed and did not adequately consult First Nations.

“The Crown failed to meaningfully consult in relation to title, governance rights and use rights,” Upper Nicola Band counsel Elin Sigurdson said to open the federal court of appeal hearing in October. “Instead it dodged, deferred, delegated and in doing so, fundamentally undermined the relationship the process of consultation is meant to foster and improve.”

According to Alexander, the court case should hinge on the degree of direct consultation required of the Crown.

He said Canada has argued that First Nation participation in the National Energy Board process and the deals made between Kinder Morgan and individual First Nations should qualify, along with a federal panel tour staged in the wake of the NEB decision. The plaintiffs have argued none of that constitutes direct nation-to-nation consultation that resulted in government-to-government agreement and that what meagre consultation took place may not have been in good faith.

Also at issue could be the fact none of the six bands that filed suit have established title on the land in question. The likelihood of them establishing that title in the future is also a factor as “prima facie” title requires a higher degree of consent. Alexander expects each side to pursue the case to the highest court in order to get clarity, regardless of whether Kinder Morgan decides to pulls the plug on the pipeline.

“No matter what happens, someone is going to appeal it,” he said. “You could see a dead project being debated in Supreme Court.”

And that, he said, should be a good thing.

“It will change the laws on the way Crown consults First Nations on any project. In the long run, it should be positive if we listen to what the court says and change the way we are doing things.”

A decision on the challenge has been considered imminent for months. Alexander now suspects a ruling won’t happen until after the May 31 deadline.

READ MORE: Vancouver, Squamish pipeline challenges dismissed by court in B.C.

In the meantime, the politicking in the court of public opinion continues. Originally part of the court appeal, the prominent Vancouver-based Musqueam pulled out of the suit in October, just prior to the hearing getting underway.

As the protests on Burnaby Mountain escalated, Musqueam Chief Wayne Sparrow released the following statement: “Musqueam agrees with the recent statement made by our relative, Sto:lo First Nation Chief Ernie Crey: ‘Not all First Nations oppose the Kinder Morgan proposed pipeline.’ ”

Sparrow said the vast majority of directly impacted First Nations have agreements with the company, adding his nation also believes negotiation is the proper path.

“Musqueam knows the serious risks of increased oil transport via rail if the pipeline project is cancelled,” he said. “We are preparing a list of conditions and voicing our concerns. Musqueam maintains the right to speak on behalf of our territory and respects the views of other First Nations who are impacted by this proposal. We have chosen the path of negotiations through engaging with government.”

However, others continue to resist, and maintain their position is not going to change. On May 9, a UBCIC delegation delivered its position to Kinder Morgan investors at a stockholders meeting. “Kinder Morgan does not have the required consent of Indigenous Nations along the pipeline and tanker route, and it never will,” said Chief Judy Wilson of the Chase-area Neskonlith band.

“The executives at Kinder Morgan have a responsibility to make these facts well known to its stockholders. We want you to know that we have the law on our side and we intend to enforce our rights. We are here to tell you that no matter what the Canadian government does to minimize political and financial risks, we will not stop fighting the Trans Mountain pipeline expansion because it threatens our culture, our spirituality and identity. This means further delay, risk and uncertainty for the project.”

The split remains evident in the votes some bands have held to ratify potential agreements. The Ts’elxwéyeqw Tribe voted no, by a 55 per cent margin. For the Lower Nicola Band, the answer was yes, by 59 per cent. Each vote was marked by poor turnout.

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Neither Martin nor Victor is involved as an active lobbyist. Like most of B.C.’s pipeline and tanker neighbours, their concerns manifest themselves primarily during conversations within their personal circles. They speak on behalf of no one but themselves.

Each acknowledges First Nations people carry the baggage of history with them into this debate. Some see their collective hardship and are eager to reach for something to change it. Some remember the causes of that hardship and are reluctant to trust.

A member of Tla-o-qui-aht First Nation, a respected elder, and lifelong resident of the Tofino area, Martin remembers the oil “blobs the size of football fields” in early January of 1989. That was when nearly 900,000 litres of bunker oil from the leaking barge Nestucca off Washington state began to wash up on 116 kilometres of exposed beaches along the West Coast. It led to an extensive clean-up, temporary shellfish and crab harvesting closures, at least one sea otter death and seabird deaths estimated in the thousands. For his community, any economic benefits from a pipeline are far away.

Tofino canoe carver Joe Martin smiles alongside his daughter (Tofino-Ucluelet Westerly News photo)

“Tankers in the water is what concerns me,” he said, adding that promises of better ships and better spill response ring hollow. “They are like anything else, like a brand-new vehicle. They say it’s the greatest thing since sliced bread and the next year there is a recall.”

But for Victor, it is the risks that seem far away, and the benefits that are tangible. He belongs to the Cheam First Nation, one of those with a signed deal with Kinder Morgan. He see jobs in the short-term, but, more importantly, training, connections and seed money that can sustain his community and other communities long-term.

“There are 43 bands standing behind this. It’s not just my story; it’s not just my land. If this is a way to elevate them to a better life…,” he said. “This is our land and our territory and we need to benefit from our resources.”

He respects the environmental concerns but says they should — and have — lead to negotiated protections, rather than feeding non-negotiable lines drawn in the sand.

“Whoever gets angry first loses. There’s always a resolution,” he said. “Twenty per cent I am worried about the risks but the benefits outweigh that for me.”

Martin, in turn, respects the economic argument, even if he doesn’t agree with it. He compares it to fish farming, another controversial economic driver with a more immediate economic benefit to his community.

“That’s their decision. I can hardly blame my sisters and my nephews for working in a fish farm. That’s their paycheque.”

But he considers himself a guardian of the land, and believes environmental protection trumps all. “It’s about one of our most precious resources and that is water. It’s the first thing we have when we are born and the last thing we have when we die.

“The risk is not worth it.”

— with files from Black Press and Canadian Press

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