News / Vancouver

Pipelandia: ‘You can meet them in court—or you can meet them at the barricades’

First Nations’ lawsuits and five B.C. conditions all that stand in way of Trans Mountain now, analysts say. Part 4 in a series.

John Ridsdale, Chief Namoks, of the Wet'suwet'en First Nation, centre left, signs a declaration opposing a crude oil pipeline and tanker expansion as actor Adam Beach, centre right, and Chief Martin Louie, of the Nadleh Whut'en First Nation, right, look on during a signing ceremony in Vancouver, B.C., on December 1, 2011. British Columbia First Nations have united to ban all exports of oil sands crude oil through their territories.

THE CANADIAN PRESS/Darryl Dyck

John Ridsdale, Chief Namoks, of the Wet'suwet'en First Nation, centre left, signs a declaration opposing a crude oil pipeline and tanker expansion as actor Adam Beach, centre right, and Chief Martin Louie, of the Nadleh Whut'en First Nation, right, look on during a signing ceremony in Vancouver, B.C., on December 1, 2011. British Columbia First Nations have united to ban all exports of oil sands crude oil through their territories.

“This Prime Minister acknowledged nation-to-nation,” lamented Squamish Nation Chief Ian Campbell. But by approving the Kinder Morgan pipeline expansion on Tuesday, “this goes against that spirit of reconciliation.”

Chief Campbell is just one of dozens of First Nations leaders and thousands of indigenous citizens who have, since the Trans Mountain expansion was proposed, galvanized rallies, testified at hearings, filed lawsuits, and canoed and prayed in front of the Texas energy giant’s Burnaby facilities.

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Few First Nations leaders have expressed their backing publicly for the project, but Kinder Morgan has cited support agreements signed with several bands, and has said its project would be a boon for skilled jobs on often under-employed reserves.

On Wednesday, Premier Christy Clark told reporters she believed the federal government could quickly address what remain of her “five conditions” (see sidebar), the fourth of which — aboriginal consultation — is likely to be resolved in the country’s courtrooms in coming years.

But for Chief Campbell, approving Kinder Morgan broke many First Nations’ trust.

Federal transport minister Marc Garneau countered that his party’s election pledge to respect a “nation-to-nation” relationship with indigenous people wasn’t broken by its approval of the Kinder Morgan Trans Mountain pipeline on Tuesday.

Asked how he hoped to restore trust with many B.C. First Nations opposing the $7-billion pipeline, Garneau said the federal Liberals would do that “by continuing the dialogue and explaining what’s involved” in a previously announced $1.5-billion ocean protection plan.

“We need to, as a government, explain why we felt this was a safe undertaking,” he told Metro in a telephone interview Wednesday. “We consulted — there are 117 different groups along the pipeline group — consultation was fairly extensive …

“Having said that, it is very difficult on a big, complex issue like this to get unanimous consent. It doesn’t stop us from continue to try to achieve as much consensus as possible, some of it by explaining things, but we feel we have a large degree of support.”

But while aboriginal people in B.C. are likely to be among the thousands of short-term jobs created to expand the existing Trans Mountain route, allowing it to nearly triple the flow of diluted bitumen from Alberta to the West Coast, according to an expert on aboriginal law Canada’s courts will ultimately be what decide Kinder Morgan’s fate.

Bill Gallagher, author of Resource Rulers, cited this summer’s Supreme Court rejection of the Enbridge Northern Gateway pipeline, overturning its federal approval on the grounds that First Nations hadn’t been adequately consulted, as required by the Canadian constitution.

“I’d say that’s the biggest win on the road to resources by First Nations,” he told Metro. “To void a project fronted by a Prime Minister, the government of Alberta, and the entire cabinet of the former government — that shows there’s a recent precedent out there that, if you forget to factor in the rise of native empowerment, the First Nations are able to prevail in court.

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“You can negotiate, you can meet them in court, or you can meet them at the barricades.”

Since publishing his book two years ago, Gallagher said the “legal winning streak” of aboriginal people over natural resource decisions has risen from 150 victories to 231.

While he said he has “no crystal ball” to predict individual outcomes, First Nations primarily from B.C. have gradually changed the dial through the legal system, and Kinder Morgan will likely be no different.

But one thing he sees as different is that the First Nations are not alone — in B.C. they have the backing and resources of municipal mayors such as Vancouver’s Gregor Robertson and Burnaby’s Derek Corrigan, as well as the alliance of the environmental movement.

Kinder Morgan Canada’s president, Ian Anderson, called on opponents — who have vowed to fight the project in the courts and the streets — to remain “lawful and respectful” as the pipeline moves towards completion in 2019.

“We've got a lot of work ahead of us and we're looking forward to getting from 'yes' to starting to build,” he told reporters during a conference call on Wednesday. “I don't think I'd be sitting here today if I didn't think we could continue on the path to building and executing on this project.”

Eugene Kung, a lawyer with West Coast Environmental Law who works extensively with First Nations communities and this week traveled with Tsleil-Waututh Nation to Ottawa to reiterate their opposition to Kinder Morgan, told Metro that meeting the Crown’s legal obligations to “meaningfully consult” First Nations will be difficult on this project.

“We know that the direction of courts in Canada has been towards consent — at least, consultation with the goal of reaching consent — and that clearly hasn’t happened (with Trans Mountain),” he said. “We’re going to see, I think, a series of lawsuits following a federal decision when one happens in the next few weeks.”

Chief Campbell confirmed that the Squamish Nation’s elected leadership was briefed Wednesday afternoon about their legal options, before an appeal period ends after 15 days.

“We want a solid mandate from our chief and council before our next move,” he explained. “Definitely the Northern Gateway (ruling) is the current legal test.

“The ruling out of that case spelled out where the Crown went wrong with consultation — and how they didn’t take the concerns of First Nations seriously through meaningful engagement. Well, we’ve experience the same response.”

 

—with files from The Canadian Press

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