HORGAN HANGS PIPELINE HAT ON PRINCIPLE OF UNANIMITY

‘Rights and title holders have to be acknowledged and respected’

Premier John Horgan is downplaying the significance of the 33 B.C. First Nations that signed benefit-sharing agreements with builder Kinder Morgan on the Trans Mountain expansion project.

“It’s not about majority rule here,” Horgan told reporters when asked during a recent media scrum what he would say to those First Nations.

“When you are talking about an energy corridor from the border with Alberta to the Coast, you are dealing with dozens and dozens of First Nations.”

He cited some First Nations that have not, as he put it, “given consent to this activity in their territory.”

“You can have 200 First Nations that are supportive,” Horgan went on to say. “I would argue that those nations would also respect the sovereignty and the integrity of the Squamish, the Tsleil-Waututh, the Upper Nicola, the Coldwater, and the list goes on and on.

“I just reject the notion that this is a majority-rule situation,” he repeated. “These are rights and titleholders. Those rights and titleholders have to be acknowledged and respected.”

Horgan noted the NDP endorsement of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) with its guarantee that First Nations have the right to “free, prior and informed consent” on projects within their traditional territories.

“Every letter that I sent to every minister directing their mandates included an acknowledgment of rights and title, and acknowledgment of UNDRIP,” said the premier. “We will be working nation by nation to try to ensure that their relationship with the Crown will be seamless and will acknowledge, again, as I say, Supreme Court ruling after Supreme Court ruling.”

Working nation by nation is no small order. There are some 203 recognized First Nations in B.C., more than the number of member nations in the UN which produced the declaration.

The challenge is particularly great with pipelines and other infrastructure projects that cross the traditional territories of multiple First Nations, including overlapping zones where jurisdiction is subject to dispute.

Still, Horgan’s position as quoted above from an April 18 scrum, would seem to indicate that all affected First Nations must consent. If a majority is not enough, does consent have to be unanimous? I asked him Wednesday.

“Well, I have to just rely on successive Supreme Court rulings that acknowledge rights and title in B.C. and I believe that investments have to be guided by that,” the premier replied.

He went on to say he’d met recently with First Nations leaders and business leaders on how to move forward on investments and obtain the certainty on the land base that, as he put it, “we have been talking about in B.C. for at least a quarter century.”

How to obtain certainty on the land base?

“Well, it is fairly clear,” replied the premier. “You follow the Supreme Court rules, you talk to Indigenous communities, you work out arrangements where activities can take place. We are well on our way in many sectors to doing that and in other sectors there are still some problems.”

He hadn’t yet used the “U” word so I tried again. There was not unanimous consent from First Nations on Site C — two are still fighting the project in court — why does it have to be unanimous on the Trans Mountain expansion project?

“Site C is a unique situation in that it was 25 per cent completed when we were sworn in as government,” replied the premier. “Ultimately we came to a conclusion that the Indigenous issues that were at play there were in court and had access to further court opportunities.

“I am certain that the West Moberly and others will follow through on that,” he said, referring to one of the two First Nations still in court against Site C. The other is Prophet River.

Returning to the point of comparison with TMX, Horgan said: “We inherited a project that had already begun and that was a quarter done. That is not the case with the Trans Mountain pipeline.

“There are significant First Nations along the corridor and at tide water that are adamant about this,” he continued. “I am surprised that the federal government is not acknowledging that.”

But far from overlooking the First Nations on TMX, reports out of Ottawa suggest the federal government is offering them a stake in the project.

If that happens, the standoff between the ins and outs could be exacerbated.

As for Horgan, though he never did use the “U” word, it does sound as if he interprets the courts as saying that pipelines and other projects need unanimous consent from all affected First Nations before they can proceed.

The position could complicate his own push to develop a liquefied natural gas industry.

The most likely project to proceed is the Shell-backed LNG Canada project, ticketed for a site at Kitimat. The project has substantial buy-in from First Nations — 16 in all according to Horgan.

But there are several holdouts and I am told one is especially intransigent. In the case of the Petronas LNG project, the New Democrats sided with one holdout leader in a First Nation that otherwise supported the project.

Thus Horgan’s support for the principle of unanimity could come back to haunt him on the LNG Canada project. At the very least, he’s given the holdouts additional bargaining leverage.

There are significant First Nations along the corridor and at tidewater that are adamant about this.

JOHN HORGAN, B.C. premier on trans mountain