First Nations Challenge Trans Mountain in Court While Conservation Group Questions Project Viability
Six British Columbia First Nations have petitioned the Federal Court of Appeal to review Ottawa’s re-approval of the C$9.3-billion Trans Mountain pipeline expansion, with Tsleil-Waututh Nation Chief Leah George-Wilson maintaining last week the Trudeau government was “non-responsive” to concerns communities raised during the last round of court-mandated consultations about the project.
The news came just days after the Raincoast Conservation Foundation and the Living Oceans Society announced a separate appeal, asking the court to rule that the federal cabinet’s approval of the project failed to protect British Columbia’s endangered southern resident orca population.
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“Canada is biased. The federal government is in a conflict of interest as the owner, the regulator, and enforcer, as well as the fiduciary for First Nations,” George-Wilson said.
“Tsleil-Waututh participated in the consultation in good faith, again. But it was clear that Canada had already made up their mind as the owners of the project,” she added. “We have no choice but to appeal again, and we expect the same result: that the approval will be overturned.”
“We were met with the same response as last time. A closed mind and a heavy hand,” agreed Kukpi7 Ron Ignace, chief of Skeetchestn Indian Band, a member of Stk’emlupsemc te Secwepemc Nation. “Trans Mountain Canada has never made an effort to consider reasonable alternatives to the proposed rebuilding of the pipeline.”
“It does feel like déjà vu,” George-Wilson added Tuesday, recalling the Indigenous court challenge 2½ years ago that led to a blockbuster appeal court ruling last August that the federal government must redo the consultations. This time around, “Canada withheld information regarding their scientific assessments of diluted bitumen impacts and only provided this information to Tseil Watuth after the formal close of consultation.”
On that basis, George-Wilson “said she expects the latest approval will be overturned based on the same mistakes the federal government made the first time with its failure to conduct meaningful consultations,” CTV News reports.
The list of First Nations lining up against the re-approval include the Squamish Nation and the Coldwater Indian Band, as well as the Shxw’owhamel First Nation, which previously supported the project, National Observer reports. Shxw’owhamel lawyer Merle Alexander said parts of a village were destroyed when the original Trans Mountain pipeline was built, and now the community is concerned about the risk to the remaining village and burial sites.
“It will break Sto:lo law, it will break Canadian law, it will break international law if Trans Mountain is allowed to advance their project through this historical site,” he said.
Yet “in our experience it didn’t seem like the process was ever in good faith,” Alexander told CTV. “It seemed like they had decided ahead of time what the accommodation measures would be before ever meeting First Nations. It was intended to create a false narrative of consultations so that Canadians would feel, ‘OK, at least they went out there and tried harder with First Nations’.”
The legal duty to consult First Nations on decisions that could affect their rights or way of life is enshrined in the Canadian Constitution, and a spokesperson for Natural Resources Minister Amarjeet Sohi said the government is confident it’s met that obligation. “We fulfilled our duty to consult with Indigenous communities by engaging in meaningful, two-way dialogue,” press secretary Vanessa Adams told National Observer.
Late last week, the Living Oceans Society challenged the National Energy Board to require Trans Mountain to prove that the 13 shippers it has lined up, including tar sands/oil sands producers Suncor Energy, Cenovus Energy, and Imperial Oil, will still commit to the project now that its cost has increased. The project is already up to $9.3 billion from an earlier estimate of $7.4 billion, CBC notes, and Living Oceans puts the final price tag at $12 to $15 billion after factoring in the $4.5 billion Canadian taxpayers shelled out to buy the project.
Executive Director Karen Wristen said those taxpayers are entitled to know whether they’re getting a good deal for the pipeline they (we) now involuntarily own.
“We can sell it if it’s a commercially viable project and the shippers are prepared to pay rates that match up with the new cost of the project,” she said. “But if we’re selling a project with shippers paying rates for a $7.4-billion project but it’s actually a $15-billion project, that’s not a commercially viable asset.”
Chief Mike LeBourdais of the Whispering Pines First Nation said he and the other members of Western Indigenous Pipeline Group want a share of the project, adding that the shippers he talks to on a weekly basis “are all excited about it, increased costs or not”. Cenovus Energy said it “continues to be supportive of all projects that would open up access to new markets for our oil,” and Joseph Doucet, dean of the Alberta School of Business, said he has “no doubt the project is still commercially viable”.
But he also told CBC the fossils would be basing their calculations on a 20- to 30-year lifespan for a project that will have to be shut down sooner as decision-makers get more serious about limiting average global warming to 1.5°C.
Wristen said any conversations with shippers since 2016 have been “happening been behind closed doors,” and Canadians need proof they’ll still pay the full cost of access. “Canadians need to know that what’s being built here is going to be sellable at the end of the day,” she told CBC.