Indigenous challenges hang over pipeline
Cases before courts on consultation and title arguments are ‘potential show-stoppers’
First Nations court challenges that allege inadequate consultation and seek to overturn federal and B.C. approval of the $7.4-billion Trans Mountain oil pipeline expansion have been overshadowed by recent debate on federal and provincial powers to regulate oil transport.
But legal experts say the First Nations cases have real implications that should not be overlooked or forgotten.
When the Federal Court of Appeal in 2016 overturned approval of Enbridge’s $7.9-billion Northern Gateway oil pipeline, finding Ottawa had failed to properly consult First Nations, it all but signalled the end for the project.
“A lot of the focus in the last week and a half has come to be about the federal/provincial issue and that’s obviously a major issue. But the Indigenous rights issue is a major legal issue as well,” said University of Saskatchewan law professor Dwight Newman.
University of B.C. law professor Margot Young said the Indigenous rights’ question — and the ruling from the courts — is a critical question that has yet to be answered.
There is little chance that question is going to be resolved by a Kinder Morgan-imposed May 31 deadline for the federal government to assure them the project will go ahead.
“Unlike this battle over jurisdiction ... Indigenous rights stop both levels of government,” said Young.
Jack Woodward, a B.C. lawyer who is the author of Native Law, said the constitutionally protected rights and title of First Nations is a completely separate hurdle for the project to overcome.
“These cases are potential show-stoppers,” he said.
Woodward noted there are not only issues of adequate consultation but of infringement of existing rights with at least two First Nations that have cases before the courts.
Houston-based Kinder Morgan delivered an ultimatum less than two weeks ago, stating it needed certainty it could build the pipeline through B.C. or it would walk away.
While the company has said it is confident beefed-up consultations with First Nations in the aftermath of the Northern Gateway ruling will mean a positive court outcome, it acknowledged that even a partial loss at the courts, setting out additional requirements, would kill the project. “That’s just I think too much to bear given the point where we are,” said Kinder Morgan CEO Steve Kean.
Cases on adequate consultation at the Federal Court of Appeal involve several First Nations on the coast and in the Interior, including the Tsleil-Waututh, Squamish, Sto:lo, Coldwater, Upper Nicola and Stk’emlupsemc te Secwepemc.
The Sto:lo and Coldwater are First Nations with infringement arguments over fishing and reserve land, according to Woodward.
The Squamish Nation is also challenging provincial approval in B.C. Supreme Court.
Newman, who holds a Canada Research Chair in Indigenous rights at the University of Saskatchewan, said that should the courts rule against the federal government over consultation, the remedy is likely to be more consultation.
The government could decide to do just that, said Newman, noting that what killed Northern Gateway was the government’s decision not to undertake additional consultation.
However, following a negative decision from the courts, any issues would not be resolved by May 31, he noted. “It would spell more delay.”
Both the federal and Alberta governments have indicated some interest in trying to indemnify Kinder Morgan from delays, but whether that would satisfy the company in the face of a negative court ruling is unknown, added Newman.
Robin Junger, a lawyer and co-chair of McMillan LLP’s Aboriginal and environmental practice in Vancouver, said in some cases companies will prefer to wait for a court ruling just in case the decision is to order a reconsideration or more consultation. “But that is a business decision — not a legal requirement,” said Junger.
The Tsleil-Waututh, who are adamant there was inadequate consultation, expect to win in the courts.
Ruben George, manager of Sacred Trust, a Tsleil-Waututh initiative to stop the Trans Mountain project, said their own assessment of the project was never properly addressed by the National Energy Board review.
“They haven’t learned,” said George. “What is crazy about it — and it is not being talked about very much — is we’ve (won) over and over again in court. First Nations win 90 per cent of legal (fights).”