When it comes to resource development and First Nations in Canada, it's usually not over until the Supreme Court sings.
Aboriginal communities in British Columbia are turning to the courts in hopes of succeeding where they failed with the Liberal government to block Kinder Morgan Inc.'s $6.8-billion Trans Mountain pipeline project.
Kinder Morgan and the government insist they are confident that the National Energy Board's review and Ottawa's broader consultation process will withstand court challenges. However, First Nations leaders and some lawyers say there are plenty of grounds to argue the Crown did not live up to its constitutional responsibility to consult and accommodate indigenous communities.
Several B.C. First Nations have applications pending before the federal court to quash the NEB's report recommending approval of Trans Mountain, and now they are reviewing their legal options regarding the federal cabinet decision itself and have until the end of this month to challenge it.
"There are multiple directions we can go along the legal routes," Rueben George, director of the Tsleil-Waututh First Nation's sacred-trust initiative to stop the Kinder Morgan project, said in an interview. "We're ready and confident. It's far from over."
Federal approval of the Trans Mountain proposal last week was greeted with elation in Alberta, as it gives the oil industry the prospect of finally gaining direct access to Asian markets for its crude exports. Combined with OPEC's deal last week to cut oil production in order to bolster prices, the Trans Mountain decision provided a glimmer of hope in an industry and a province that have been bludgeoned by the 30-month-old oil price slump.
But the optimism is tempered by the knowledge that what the federal cabinet has given, the courts can take away.
Last week, the Supreme Court of Canada heard arguments in two cases involving indigenous communities that feel the government wrongly relied on the NEB to carry out consultations with them on resource projects. A ruling in that case – expected in six months or so – could weigh heavily on Trans Mountain legal challenges.
In announcing the federal decisions last week, Prime Minister Justin Trudeau and Liberal cabinet ministers indicated the government had fulfilled its duty to consult and accommodate indigenous communities whose traditional territories will be impacted by the project.
Kinder Morgan Canada president Ian Anderson said he expects legal challenges but is confident the company can break ground on the project by next September. The company has agreements in place with First Nations covering more than 80 per cent of the pipeline's route. "There'll be voices in every community that are going to have their opposition. First Nations communities are no different," he said.
Some First Nations leaders are vowing to take up direct action if their legal appeals fail. Thousands of "coastal protectors" will "do what needs to be done to Kinder Morgan," Stewart Phillip, president of the Union of BC Indian Chiefs, said in an open letter to the Prime Minister published in The Globe and Mail on Friday.
Indigenous people have long relied on the Supreme Court of Canada to protect their rights recognized in Section 35 of the Canadian Constitution even when the government does not, said Perry Bellegarde, National Chief of the Assembly of First Nations.
Mr. Bellegarde said he expects the courts to take into consideration the fact that the federal government has endorsed without qualification the UN Declaration on the Rights of Indigenous Peoples, which recognizes the right of aboriginal communities to exercise free, prior and informed consent over resource projects in their traditional territories.
The current standard in most cases is that the Crown has a duty to consult and accommodate indigenous communities over resource projects.
In assessing that duty, the courts have adopted a test of "reasonableness" in terms of the effort made by the NEB and the Crown, and have deferred to government in finding the appropriate balance between the rights of the indigenous communities and national interest, Thomas Isaac, a partner specializing in aboriginal law at Cassels Brock & Blackwell LLP, said in an interview.
He pointed for guidance to the federal Court of Appeal decision last June that quashed the former Conservative government's permit to allow Enbridge Inc. to build the Northern Gateway pipeline. In that ruling, the court said consultations conducted by Enbridge and the NEB had been adequate but that the federal cabinet failed to ensure indigenous rights were respected and accommodated after the NEB had made its recommendation to the government.
The court said the federal government could fix the problem by re-engaging with the First Nations along the Northern Gateway route, but the Liberals decided to kill the project because of environmental risks to the Great Bear Rainforest and northern B.C. coast. Ottawa had that Gateway case to guide its consultation efforts on Trans Mountain.
Some lawyers argue there are legitimate grounds to overturn the federal approval of the Trans Mountain project.
The Tsleil-Waututh live on the Burrard Inlet, which is also home to the Kinder Morgan terminal that would receive nearly 900,000 barrels a day of heavy crude from the oil sands and fill on average 24 crude tankers each month. Along with several other local First Nations bands, the Tsleil-Waututh argue the NEB process was seriously flawed because, among other things, the board did not allow cross-examination of Kinder Morgan experts on the likely environmental impacts that could devastate their communities that rely on local flora and fauna.
The government may have trouble proving it accommodated First Nations' concerns, given that it failed to make any changes to the 157 conditions recommended by the board despite ongoing complaints from communities, said Jessica Clogg, executive director and senior counsel at West Coast Environmental Law, a non-profit legal office.
And then there's the issue of consent. Courts have said that where indigenous communities have established clear title to the land through a treaty, they must consent to projects. Ms. Clogg suggested the Tsleil-Waututh and other First Nations may argue that they have effective title, and therefore must consent to the Trans Mountain project for it to proceed.