First Nations still wary of supporting Trans Mountain pipeline expansion

It's closing in on decision time for the Trans Mountain pipeline expansion plan.

The federal government needs to decide whether to approve the project before a Dec. 19 deadline, but many First Nations leaders and people are still trying to make a call on whether to support the plan, which was approved by the National Energy Board in May with 157 conditions.

What will be a difficult decision politically for Ottawa weighs heavily on Indigenous Canadians, who know that the decision they make now will have repercussions for generations of their people.

The fear is that you don't sign and it goes ahead anyway, you get nothing.- Summer Ebringer, Enoch Cree First Nation

Aaron Sam is one of those First Nations leaders. He is the chief of the Lower Nicola Indian Band, with traditional territory that lies between Kamloops and Hope, B.C. Trans Mountain crosses the Lower Nicola reserve land in three locations, so the band of 1,250 is one of the key groups that the pipeline's proponent Kinder Morgan needs to get onside.

It isn't onside yet, but talks are ongoing.

"We have had many meetings with Kinder Morgan," said Sam. "And we've made some progress in our negotiations, but at this point we're still in discussions."

Lower Nicola members are conflicted on the pipeline. "Some people are looking for work and opportunities," said Sam. "However, there are also many community members who are completely opposed to the project and there are some in-between."

The $5-billion project would expand an existing 1,150-kilometre pipeline between the Edmonton area and Burnaby, B.C. It would create a twinned pipeline increasing the capacity of the system from 300,000 barrels per day, to 890,000 barrels per day.

A third of First Nations sign on

As of last week, Kinder Morgan had letters of support from 39 of the 120 Aboriginal groups that it consulted. Those 39 groups signed benefit sharing agreements with the company that will give them compensation for the risk they take on, having the pipeline go through traditional land.

Those that haven't signed know time is running out.

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"The federal government can make a decision any day now and it's our position that if we are going to move forward with a decision, sooner is better than later," said Sam.

There is a fear among First Nations that if they do not sign a deal by the time a decision is reached in Ottawa, they risk being left out, even though the pipeline will travel through their territory.

Earlier this year, Natural Resources Minister Jim Carr appointed a three-person panel to identify gaps in the National Energy Board's review of the proposed project. That panel found that First Nations felt stuck.

"The fear is that you don't sign and it goes ahead anyway, you get nothing," Summer Ebringer, of the Enoch Cree First Nation, told the panel.

Aaron Sam's Lower Nicola Band is still negotiating with Kinder Morgan, but would like the federal government to delay the decision

8 years ago

Duration 0:37

Aaron Sam is the chief of the Lower Nicola Indian Band

Consultation process a mess

The Trans Mountain consultation process has been something of a mish-mash. The process began in 2014, under the Conservative government which had streamlined the environmental review process so it would move more quickly.

Those changes meant that First Nations and others were no longer able to cross-examine Kinder Morgan at a hearing and test its claims.

Well before the Trans Mountain review, the federal government delegated its responsibility to consult with First Nations for pipeline development to the National Energy Board. But earlier this year, a court decided that wasn't going to fly, ruling consultations had to be nation to nation.

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After the federal election in 2015, the Liberal government announced in January there would be more consultation. The government extended the decision time for Trans Mountain, sent a three-person ministerial panel on the road, sent Natural Resources Canada staff to British Columbia to talk to First Nations, including Minister Carr himself and tried to fill the gaps in consultation.

We will go until we hear that this pipeline won't be built.- Charlene Aleck, Tsleil-Waututh First Nation

If the consultation process has been in flux, so has the law around what consultation, accommodation and consent means when it comes to development on traditional Aboriginal territory. 

Aboriginal title

In 2014, the Supreme Court ruled that the Tsilhqot'in people of B.C had Aboriginal title over a 1,750-square-kilometre area in the Interior of the province. With that title came the "the right to use and control the land and to reap the benefits flowing from it."

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Earlier this year, the federal government said it fully supported the United Nations Declaration of Rights of Indigenous Peoples (UNDRIP). Part of that resolution calls for the free, prior and informed consent over development on their land.

So what does that mean? It depends who you ask.

Earlier this month, Carr seemed to suggest that Kinder Morgan didn't require First Nations consent for the Trans Mountain plan. But not everyone agrees.

"It's in flux. The law is changing all the time, it's changing toward greater responsibility on behalf of the government," said Bruce McIvor, a lawyer with First People's Law.

"And so the expectations year by year are increasing. And so post-Tsilhqot'in and after the government said that it will fully endorse UNDRIP, the expectation is more and more that government will engage in a consent-based model."

McIvor expects that to be a question the courts will have to answer if the Trans Mountain pipeline expansion is approved by the federal cabinet.

Court challenge likely

There is little question that a decision in favour of Kinder Morgan will be challenged in the courts by the Tsleil-Waututh First Nation, whose traditional territory includes the Burrard Inlet, where tanker traffic would increase significantly if the expansion is approved.

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The Tsleil-Waututh already challenged the NEB review of the pipeline in the Federal Court of Appeals, saying that its rights were violated by the process. It was not successful, with the court saying the Tsleil-Waututh needed to engage in the whole consultation process.

Charlene Aleck, a councillor with the Tsleil-Waututh, said the First Nation will continue to oppose the pipeline expansion, despite the cost of continued legal challenges.

"We absolutely can't put a price to the inlet and what it means to me. We will go until we hear this pipeline won't be built, because this pipeline won't be built, in my opinion."