The Trans Mountain pipeline expansion is a high-risk investment for Canada and any future financial backers because it runs through unceded Indigenous lands, says one economist.
D.T. Cochrane, an economic researcher with the Indigenous Network on Economies and Trade, says the Texas oil giant Kinder Morgan’s April decision to suspend non-essential spending and the federal government’s subsequent nationalization of the controversial project are either ignorant to, or minimize, legal and financial risks that make the project “completely untenable.”
Cochrane says while discussion of the Trans Mountain controversy has centred on financial risk associated with legal and jurisdictional disputes between the province of British Columbia and the federal government, the project’s greatest financial threat is the risk associated with running the pipeline through unceded Indigenous lands.
“Kinder Morgan was always very careful to place all of the uncertainty on to the province [of B.C.], when really the uncertainty stems from the Indigenous jurisdiction that exists,” he said. “It was a question that Kinder Morgan either seemed ignorant of or unwilling to address.”
Cochrane says Canada’s $4.5-billion purchase of the project – which by some estimates could cost up to $15 billion more by completion – is a “perfect example of the socialization of risk” and means associated risks are now “borne by the Canadian government and…all of the citizens of Canada.”
But the feds have indicated Canada will shop the pipeline to private sector investors, and hope their buyout of Kinder Morgan’s assets will instill investor confidence.
Nicole Schabus, an assistant law professor at Thompson Rivers University in Kamloops, says while about half the Trans Mountain pipeline route crosses through Secwepemcul’ecw – the unceded territory of the Secwepemc people – Canada has never obtained their free, prior and informed consent.
She says when Kinder Morgan suspended non-essential spending they pointed to the province of B.C. for the hold-up.
“But the biggest uncertainty, legal and economic, comes from Indigenous peoples,” Schabus said.
The Trans Mountain pipeline was built in 1953, at a time when Indigenous people couldn’t legally organize around the question of land title and jurisdiction, Schabus explains.
Since then multiple Supreme Court of Canada decisions have strengthened Indigenous Peoples’ land rights, title and jurisdiction in decision-making processes about what happens on their unceded territories where no treaties exist that give title to the Crown.
At least four Secwepemc First Nations along the pipeline route have signed onto the project, but Schabus says Aboriginal title and jurisdiction belong to the Secwepemc people themselves – not the bands established under Canada’s Indian Act – and the people are the “proper rights holders.”
Canada and any potential investors’ biggest risk, Schabus says, “is the failure to recognize Aboriginal title because Aboriginal title has been recognized on the broader territorial concept, including by the Supreme Court of Canada.”
Cochrane says the feds and Kinder Morgan “are doing everything they [can] to sidestep the real issue” of Indigenous rights and title.
He says that, coupled with widespread support from Indigenous leaders and promises from Secwepemc grassroots people and Indigenous and non-Indigenous allies in B.C. and across Canada to resist the pipeline expansion, makes the project’s “unquantifiable risk” the “death for any potential asset.”
“If you cannot assess the risk of an asset, you cannot price an asset – so how could investors possibly back that asset?”
Kanahus Manuel, a Secwepemc land defender who has called Canada’s purchase of the Trans Mountain pipeline a “declaration of war” against her people, tells APTN News that coverage of the controversy has largely ignored the issue of Secwepemc rights and sovereignty.
“This is serious because we are such an endangered population here; we cannot exist as an Indigenous people without a homeland, without a land base,” she says. “Our culture, our language — everything flows from the land. We can’t separate it.”
On June 1, B.C. Supreme Court Justice Kenneth Affleck granted Kinder Morgan’s request to expand an existing injunction to cover “any other project or operations site of Trans Mountain or its affiliates, contractors, or subcontractors” beyond the already court-protected Westridge Marine and Burnaby Terminals.
Manuel says enforcement of the injunction in Secwepemcul’ecw- namely if authorities arrest or physically remove Secwepemc people from their lands as they attempt to defend their Indigenous rights and title – would be an act of genocide.
“It is committing genocide because they have [already] forcefully removed us off of our territories on to the reservations,” she explains. “But we already know our inherent rights, and our rights and our title exist far beyond the reservation borders.”
Manuel says injunctions such as the one granted to Kinder Morgan favour corporate interests over Indigenous rights that are protected under international law.
“One of the tests [in granting an injunction] is the balance of convenience,” she explains. “Who is going to lose the most if this project continues? And they put in a monetary value and calculation of how much the company will lose [versus] Indigenous people.
“They don’t take into calculation the value of all those tens of thousands of years that we invested: all of our culture and our language and every being that comes from that land, our ancestors’ blood and bones that remain in that land. They don’t take that into consideration in that balance of convenience test, because it’s settler colonial courts.”
Manuel says Secwepemc people “are not to be included in a blanket injunction of regular civilians.
“That’s not who we are — we are a distinct nation, and we have rights and we have title and we have nationhood that we’re standing on.”
Cochrane says the “huge possibility of a massive on-the-ground physical resistance between the government and the Indigenous land defenders and their non-Indigenous allies” could mean that future investors in the pipeline “end up getting mixed into what is an extremely brutal longstanding colonial relationship with all of the messiness that comes along with that.”
He says investors would face “reputational risks” in addition to financial risks, and they “need to start looking at every single resource development project taking place within the borders of Canada and asking whether or not there are unresolved jurisdictional questions, because likely there are.
“Until those questions are addressed I think every sort of extractive undertaking should be suspect from the bottom line perspective of the investors,” he adds.
Manuel says the Tiny House Warriors project she helped initiate last year, where Secwepemc people and allies have been building small, mobile dwellings on what would be the pipeline extension route through Secwepemcul’ecw, is not a protest, but an assertion of Indigenous rights and jurisdiction.
“When we build our homes and our village sites on our lands – it’s something different. This is not a protest camp,” she explains. “We have inherent and ancient roots to our lands.
“We are not Canadian civilians. We are Indigenous people in our own homelands.”