Stó:lō First Nation eyes claim over Lightning Rock site in path of Trans Mountain

A Stó:lō First Nation in B.C. is considering filing a claim over a sacred site that sits in the path of the Trans Mountain pipeline expansion, part of a possible influx of new claims that could be triggered by the project.

The $7.4 billion Trans Mountain pipeline project crosses 400 existing historical claims — known as specific claims —which stem from loss of promised lands, breaches of treaty and Ottawa's mishandling of trust funds, according to research by the Union of B.C. Indian Chiefs (UBCIC). 

The construction of the project, which would twin the existing pipeline, upping its capacity to 890,000 barrels of oil per day from 300,000, could trigger additional specific claims, many based on existing grievances.

Dalton Silver, the chief of Sumas First Nation about 80 kilometres southeast of Vancouver, said his community could be one of those behind a new specific claim.

He said Sumas has pushed for Trans Mountain to reroute its project away from the Lightning Rock site that includes burials from a smallpox epidemic.

"We've talked about an alternative route with little or no impact," said Silver. 

"We are seriously looking at a specific claim over the area."

According to federally-owned Trans Mountain's filings with the regulator, the project crosses the Lightning Rock area at two spots — in one area for 126 metres, with a 25 metre width, and another area for 163 metres at a 63 metre width. 

The National Energy Board, now known as the Canada Energy Regulator, included Lightning Rock among the 156 conditions that accompanied approval of the project. 

Condition 77 required a detailed archeological and cultural heritage study on the potential impacts of the project on the site to be filed and approved three months before any work commenced in the area. Trans Mountain has yet to meet that condition.

Silver said the First Nation's original reserve boundaries went up to Lightning Rock, but after a smallpox epidemic decimated 80 per cent of his people's population, colonial authorities unilaterally shrunk the reserve's boundaries. 

"Our reserve consisted of around 20,000 acres at one time and now we have 600 acres," said Silver.

Silver said the victims of a 1782 smallpox epidemic are buried around Lightning Rock, which sits on the slopes of Sumas Mountain. According to oral tradition, it's the place a shaman was turned to rock by a Thunderbird and split by a lightning bolt into four pieces.

Expansion could create new claims

The UBCIC cross-referenced the Trans Mountain pipeline path through First Nations territory with the database of active specific claims, including all within a 10 kilometre radius of the corridor, and found there were already 400 specific claims along the path. 

"With the new twinning, you could double that, or more," said Neskonlith Chief Judy Wilson, who co-chairs the B.C. Specific Claims Working Group with Silver.

Wilson said the project would create new claims if it cuts off access or impacts lands like ancestral villages or burial sites that are currently under claim. 

New claims could also sprout if construction or an oil spill impacts reserve lands or lands reserved under colonial policy that were never respected, said Wilson.

"Canada is actively creating new … grievances at a time when it is publicly committed to resolving historical grievances as part of advancing reconciliation," she said. 

Under federal policy, a specific claim can't be filed until 15 years after the infringement, so the possible new claims represent a hidden liability potentially in the hundreds of millions of dollars for the Trans Mountain project.

While construction of the pipeline expansion project is expected to begin near Kamloops, B.C., next month, the processing of existing specific claims has nearly ground to a halt, according to Wilson. 

"They have found ways to conveniently drag their heels or drag the work out and they are doing it under the auspices of COVID-19," said Wilson.

Her community is seeking to file a specific claim of over $150 million over loss of reserve lands. 

Wilson and Silver wrote Stefan Matiation, director general of the specific claims branch with Crown-Indigenous Relations, on April 22 expressing concern over the significant slow down — if not outright halting — of work on claims by the department. 

The department has deemed dealing with specific claims a "non-essential" activity during the COVID-19 pandemic and some negotiations have entirely stopped, said the letter. 

Even completed claims waiting for ministerial sign-off were "on hold indefinitely," the letter said.

"Delays, limited access to information, poor and uneven communication, and an explicit deprioritizing of claims have left Indigenous nations in the dark about how and if Canada intends to address its lawful obligations," said the letter. 

In-person meetings at 'core' of negotiations, say feds

Crown-Indigenous Relations Minister Carolyn Bennett's office said in an emailed statement that "resolving historical grievances" was a "crucial part of reconciliation." 

The statement said claims waiting for ministerial approval "continue to move through the process" and that responding to COVID-19 is "the primary focus at this time."

The department said in a separate emailed statement that it had settled more than 130 specific claims since 2016. The department said in 2019-2020 it settled 33 claims totalling $799 million.  

The statement said the in-person meetings at "the core" of negotiations can't occur as a result of existing public health restrictions in response to the COVID-19 pandemic.

"The department's work to resolve outstanding specific claims remains a priority and our joint work with First Nations partners, including finalizing claims, is continuing through the COVID-19 pandemic," said the statement. 

Sumas is the only First Nation out of the 15-member S'ólh Téméxw Stewardship Alliance that remains involved in opposition hearings before the Canada Energy Regulator on the Trans Mountain project, according to filings.