The topic: First Nations legal rights in stopping Kinder Morgan

What’s new: First Nations rights can cause a legal quagmire when it comes to the construction of the Kinder Morgan Trans-mountain Expansion.

Why it’s important:  A controversial decision to approve the Kinder Morgan Trans-mountain Expansion by the Liberal government was made in November last year. The new pipeline would more than double the amount of existing diluted bitumen being transported from Alberta oil sands to a tanker terminal in Burnaby, B.C. Tanker traffic in the Burrard Inlet is estimated to increase seven-fold.

Prior to the government’s announcement, the National Energy Board conducted a review of the pipeline and concluded that construction would be in the public interest. This review was followed by consultations of communities along the pipeline route, performed by the Ministerial Panel.

Although some First Nations had negotiated agreements with pipeline, overall the consultation panel found significant opposition. “Even among those people who had negotiated benefit agreements and signed letters of support for Trans-mountain, most said their rights were not respected and that their concerns about impacts were ignored, or at the very least, minimized,” reads the report from the Ministerial Panel released in November 2016.

A briefing note regarding First Nations consultation said that upholding Indigenous rights may present a “tension” for the project. Section 35 of the Constitution Act grants First Nations rights to land, and First Nations groups in direct opposition to the pipeline are arguing that approval of the pipeline would violate this legislature.

The Sacred Trust Initiative from the Tsleil-Waututh First Nation is mandated to stop the Kinder Morgan pipeline and tanker terminal from being built. They conducted an independent assessment report on how the pipeline would affect their First Nation, which takes into consideration the increased likelihood and consequences of a spill. The assessment found that “spilled oil has the potential to foul every corner of the Burrard Inlet,” and “a large spill has the potential to expose over one million residents around the Burrard Inlet to acute toxic health effects from toxic air emissions.”

John Konovski, senior advisor at the Sacred Trust Initiative, said that “The issues is that the National Energy Board examined didn’t include all the interests of Tsleil-Waututh have. The biggest one being that marine shipping was not part of the environmental assessment.”

Failure to respect First Nations titles and inadequate consultation has caused problems for the construction of pipelines in the past. “As we have seen from the Federal Court of Appeals decision that quashed the NEB approval for Enbridge Northern Gateway pipeline in June 2016, failing to consult appropriately with these groups has the capacity to bring a project of this nature to a standstill,” reads the report from the Ministerial Panel.
What the government says:  Roxanna Coulon, communications office for Natural Resources Canada, wrote in an email that “No relationship is more important to our Government than the one with Indigenous peoples.” According to Coulon, the pipeline expansion project has committed more than $300 million to socio-economic agreements with First Nations groups over the next twenty years, and the 2017 budget provided $64.7 million to fund an Indigenous monitoring and advisory committee to support communities affected by the pipeline.
What others say: Bruce Miller, a UBC professor who studies Indigenous affairs, said that the Tsleil-Waututh have a fair case in opposition to the pipeline, but legal proceedings can be a lengthy process. “I think in the end it’s unclear that it really will go through,” said Miller.
What’s next: Tsleil-Waututh and other First Nations groups are taking their case to the B.C. Supreme Court. Konovski said the case is likely to proceed over the next year to year and a half.