A coalition of First Nations leaders has accused the federal government of failing to consult in good faith with B.C. communities that lie in the path of Kinder Morgan Inc.’s Trans Mountain pipeline expansion project.
At a news conference in Gatineau, Que., Wednesday, several First Nations leaders from across Canada said Prime Minister Justin Trudeau was reneging on his reconciliation pledge, citing his government’s commitment to getting the pipeline project built without first getting the consent of affected Indigenous communities.
“Prime Minister Justin Trudeau has failed to respect the Indigenous rights of the Squamish people, has failed to consult my nation when it comes to the expansion of the Kinder Morgan pipeline and the increased oil tankers through our territory,” said Khelsilem, a councillor with the Squamish First Nation who goes by his traditional name.
The Squamish, the Tsleil Waututh and the Neskonlith Indian Band have challenged the government’s approval of the pipeline project in the federal Court of Appeal and are awaiting an imminent decision on those lawsuits, along with those of environmental groups and municipalities.
The First Nations groups have seized upon a report in the online publication The National Observer, which published e-mails from government officials, obtained under the Access to Information Act, that suggest Ottawa was consulting with First Nations after having already determined it would approve the project.
“It appears the Trudeau government entered into this process with an end goal in mind, without engaging First Nations, without consulting us or many other First Nations along the pipeline route that would be affected,” Khelsilem said.
The Indigenous groups have filed motions asking the court to reopen the matter. Failing that, they argue, they have strong grounds for appeal should the decision go against them.
Kinder Morgan has put the pipeline project on hold while it negotiates with the federal and Alberta governments for financial support to ensure its shareholders are not vulnerable to massive losses. In announcing the delay, the company said it needs clarity around the political risk, as British Columbia seeks to block the transport of oil sands bitumen through the province, and the project’s legal status, as groups await a decision from the court.
Natural Resources Minister Jim Carr has expressed confidence that Ottawa met its constitutional obligations with regards to consultation and accommodation of First Nations. After taking power in late 2015, the Liberal government bolstered the National Energy Board process with additional hearings and consultations along the pipeline route.
The government was guided in its approach by a federal Court of Appeal ruling regarding the proposed Northern Gateway pipeline that overturned the previous, Conservative government’s approval of that project and spelled out clearly where the government had failed to meet its duty to consult Indigenous communities.
Some 43 Indigenous communities along the pipeline route have signed benefits agreements with Kinder Morgan, and several chiefs in British Columbia have publicly supported the project. As part of its consultation effort, the federal government established a joint monitoring committee to ensure the company meets the conditions of its approval.
“The decision to approve the TMX project was made in Cabinet, by Cabinet, and only after extensive and unprecedented consultations with Indigenous people – a key pillar of our interim approach,” Mr. Carr’s spokesman, Alexandre Deslongchamps, said in an e-mail.
“Our government is deeply committed to advancing reconciliation with Indigenous peoples and we believe in ongoing conversation and engagement throughout the lifecycle of a project.”
Still, veteran aboriginal law practitioner Thomas Isaac said the courts have been clear that consultations are meant to occur before the government has reached a decision on a project.
“Good faith is critical here,” said Mr. Isaac, a partner at Cassels Brock & Blackwell LP. “You have to do the full job of consultation before the decision is made.” Government can consult on how to accommodate First Nations concerns once the decision has been made, but the intent of those talks has to be transparent, he said.