Canada’s new Trans Mountain consultation plan met with skepticism

The Tiny House Warriors are asserting their Indigenous rights and title on the land in Blue River, B.C. and say they have no plans on moving until the Trans Mountain pipeline is dead. File photo.

Justin Brake
Canada will not appeal a federal court’s recent ruling on the Trans Mountain pipeline expansion and says it will re-engage with First Nations and Métis communities impacted by the project.

The announcement by Natural Resources Minister Amarjeet Sohi Wednesday morning comes amid ongoing debate around Canada’s duty to consult Indigenous peoples on the pipeline, and on resource projects developed on Indigenous lands more broadly.

On Aug. 30 the Federal Court of Appeal ruled on a case brought forth by a number of First Nations, the Cities of Vancouver and Burnaby and the Government of British Columbia that the National Energy Board’s (NEB) “process and findings were so flawed that the Governor in Council could not reasonably rely on the Board’s report,” and that Canada “failed to fulfil the duty to consult owed to Indigenous peoples.”

Responding to that decision on Wednesday Sohi announced the federal government is appointing former Supreme Court of Canada Justice Frank Iacobucci to oversee a new consultation process in which Canada will “work to address concerns of First Nations and Métis communities to move forward in the right way on this project in accordance with the Court’s direction.”

Canada intent on getting pipeline built

While Canada won’t appeal the decision to the Supreme Court, Indigenous leaders and grassroots people are skeptical of the Trudeau government’s intentions, and whether it will respect Indigenous rights.

Grand Chief Stewart Phillip of the Union of B.C. Indian Chiefs (UBCIC) told APTN Wednesday that UBCIC is “firmly convinced that the Trudeau government is making its best efforts to circumvent the Federal Court of Appeal decision and to reactivate the project as quickly as possible.”

On Wednesday Prime Minister Justin Trudeau told reporters the feds are “intending to follow the blueprint laid out by the courts,” and that “if we were to appeal [the decision] it would take another few years before we could begin construction.”

“We feel that the blueprint that the court laid out for [Trans Mountain pipeline] will allow us to get things done quicker and get our resources to new markets other than the United States in a more rapid fashion.”

Watch Annette Francis’ story on the announcement here


Eugene Kung, a lawyer with West Coast Environmental Law who has written about Trans Mountain and Aboriginal rights, says Trudeau and Sohi’s comments Wednesday indicate Canada “seems to be focused not on what the Supreme Court of Canada has said” on Aboriginal rights, but rather “on what the federal court said in this one decision.”

In a recent article for Policy Options Kung wrote, “It is important to recognize that the Federal Court of Appeal did not create any new law in this decision,” and that judges “simply applied the law as set out by the Supreme Court of Canada and the Federal Court of Appeal in cases such as HaidaGitxaalaChippewas of the Thames and Clyde River, among others.”

Kung said the Supreme Court of Canada “has said very clearly how to ensure adequate consultation, which is to obtain consent, and it’s very clear that this is not what the intention of this process is.”

He echoed Grand Chief Phillip’s concerns that “it looks as though their mind is already made up, which kind of suggests it’s very possible that whatever comes out of the end of this process will end up back in the court again, which is in nobody’s interest.”

Stewart said while the UBCIC consults with their legal team on the announcement, they “don’t want to be somewhere off in left field undertaking a grandiose consultation process while construction crews are out laying pipe.”

Khelsilem, a councillor and spokesperson for Squamish Nation, a litigant in the case, said in a statement released Wednesday that the Nation “continues to have serious concerns” about Trans Mountain, and that they “expect an honourable consultation process that upholds our nation’s Indigenous rights.

“The Trudeau government tried to ram this project through our territory with a predetermined outcome and this was not acceptable to Squamish Nation or the courts,” Khelsilem added.

“We would have concerns about any process which had artificial timelines or restrictions on our rights. We have a sacred duty to protect our traditional territory for future generations.”

“Accommodation where accommodation is possible”: Sohi 

In May, Canada announced it was buying the embattled pipeline—which has faced fierce opposition from Indigenous groups for years while garnering the support from some First Nations and Metis communities—from Texas oil giant Kinder Morgan for $4.5 billion.

At that time Indigenous leaders from a host of Nations and communities—and with grassroots people asserting their rights and jurisdiction on the ground in unceded Tsleil-Waututh, Squamish, Musqueam, Sto:lo and Secwepemc territories—vehemently and publicly opposed the Trudeau government’s assertion that it would see the pipeline through to completion.

Critics of the project maintain that in building a pipeline through their lands without Indigenous peoples’ free, prior and informed consent violates Aboriginal rights and contradicts Canada’s commitment to upholding the Truth and Reconciliation Commission’s calls to action, including the imperative to implement the United Nations Declaration on the Rights of Indigenous Peoples. 

Following the federal court of appeal’s announcement in August Indigenous representatives gathered in Vancouver for a joint news conference.

“It was a hard fight, but I’m glad today the courts heard the teachings of our culture, and our spirit, and how we carry ourselves,” Tsleil-Waututh Chief Reuben George announced. 

“The people up here that represent the nations could have negotiated for millions, but we can’t put a price on the things that we love.”

Asked by reporters how Canada will carry out its consultations with Indigenous groups, Sohi said Wednesday the feds “are going to engage in good faith and in a meaningful way,” adding Canada will “offer accommodation where accommodation is possible.”

Sohi said the NEB is conducting its own review of marine shipping and the impacts on species at risk.

Meanwhile, Canada will begin its consultation process, he added.

“We will follow the direction that has been given to us by the federal court, [which] has said that meaningful consultation can take place in a focused and efficient manner. 

“So with that we’ll be going into the communities with an open mind, and engaging and listening and learning from them, and accepting their help in designing and the input into how we need to move on this important project.”

Grassroots resistance remains until Indigenous rights respected

Meanwhile, the Tiny House Warriors continue to assert Secwepemc title and jurisdiction on the land in Blue River, B.C. at the site of a proposed worker’s camp.

Kanahus Manuel of the Secwepemc Women’s Warriors Society—and granddaughter of George Manuel, the former UBCIC Chief who led the “Constitutional Express” grassroots movement in 1980 and 1981 that ultimately pressured the Pierre Trudeau government to include Indigenous rights in the repatriated constitution in 1982—said Canada still isn’t respecting Indigenous rights by consulting with bands created under Canada’s Indian Act.

“The Secwepemc Nation is one nation; it takes up more than 500 kilometres of this pipeline route,” she told APTN by phone Wednesday.

Manuel said Canada is “talking to the chief and council system…and those chiefs and councils are violating our Indigenous rights in thinking that they are the proper decision-makers.”

Manuel pointed out that Indian Act bands are only able to make decisions on the reserve lands determined by Canada.

“When they’re talking about going back and re-establishing consultation with First Nations, they’re talking to the wrong people,” she said.

“We have governance laws based on consensus that were given to us from—in our case in Secwepemcul’ecw, from Chief Coyote, and the old ones, those teachings of consensus.

“The proper decision-makers are the people who hold that title collectively amongst our Nation. So in Secwepemcul’ecw, that’s 10,000 people who are the rightful title holders.”

Critics have long maintained that Canada’s Indian Act divides and conquers Indigenous Nations by creating First Nations bands within broader societies, and then uses negotiating tactics to pressure those bands to consent to resource development on their lands.

“Every time our Nations are compromising because they’re holding a gun to those chiefs’ heads and they’re playing Russian Roulette with that trigger. ‘You say yes, we won’t shoot. You say no, we pull funding, you people die,’” Manuel added.

Manuel said the Tiny House Warriors are still established in Blue River and have watched pipeline infrastructure being moved north through the community.

“We will continue to blockade. And with these continued threats by the federal government, we’re not going to take them lightly. 

“If they’re going to amp up pushing this pipeline through, then we’re going to amp up the conflict and the confrontation and the blockades that are going to happen to stop this pipeline.”

She said her grandfather, and her father Arthur Manuel, helped mobilize thousands to get Indigenous rights into Canada’s constitution, and that it’s up to grassroots people to ensure those rights are respected by Canada.

“We need to remember that people fought for that in the constitution,” she said. “Aboriginal title exists.”

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