Kinder-Morgan’s application for approval of the Trans Mountain Pipeline expansion (TMX) has been bouncing around in Canada’s federal courts like a pinball since 2013. First Nations tribes and environmental groups have valiantly worked the flippers of the judicial pinball machine for years, filing lawsuits and appeals, to keep that shiny ball from rolling down the drain of approval. But on July 2, down it went when the Supreme Court of Canada (SCC) denied three First Nations leave to appeal the decision of a lower court.

The fight lasted so long and cost so much that Kinder-Morgan, the pipeline’s original owner, wound up selling the whole thing to Canada in 2018. As a result, the Canadian government was in the dubious position of reviewing an application for a pipeline that they themselves owned. Not surprisingly, the pipeline expansion was approved and now that approval cannot be appealed. Imagine that.

So in an era in which Canada has supposedly made a commitment to reconciliation with First Nations people, how has this decision rendered the government’s policy of consultation and accommodation with them?

Meaningless consultation

That’s what Squamish Nation Councillor and Spokesperson Chris Syeta'xtn Lewis called Canada’s consultation and accommodation policy with First Nations.

Referring to the July 2 Supreme Court decision, Lewis said in a recent interview, “it has rendered the duty to consult and accommodate meaningless.”

On February 4, Canada's Federal Court of Appeals (FCA) dismissed an appeal by the Squamish and several other tribes, stating the government had performed “deep consultation” with Indigenous tribes and this consultation was “reasonable.”

“They took interpretation from a Supreme Court decision that did not concern aboriginal rights and applied it in this context,” Lewis said.

That decision, Canada v. Vavilov, was a citizenship and immigration case in which the validity of judicial review was determined by whether or not it was “reasonable.” Such a vague term used to determine the validity of a decision was unacceptable to the Squamish Nation, the Tsleil-Waututh Nation and the Coldwater Indian Band.

These three tribes filed for leave to appeal the FCA’s decision with the Canadian Supreme Court, hoping for a clarification of the government’s duty to consult with First Nations about projects impacting them.

“So what happened in terms of the dismissal at the Supreme Court level is Canada has said loud and clear from its highest court that they didn’t want to provide clarity in terms of the consultation process,” Lewis said.

Consent is not just the power to veto

Free, prior and informed consent (FPIC) is an important component of the United Nations Declaration on the Rights of Indigenous People (UNDRIP), of which Canada is signatory. But Lewis feels the term “consent” sounds too much like giving absolute veto power to First Nations governments.

“The government couldn’t get their head around the fact that the Nations weren’t asking for a veto. You continue to hear in the court system that Squamish Nation and Tsleil-Waututh and Coldwater are seeking to have a veto and stop the project, where we were basically stating we have all of these concerns, some of which are highlighted in the government’s own processes, concerns and infringements upon our rights that need to be mitigated and accommodated,” Lewis explained.

The concerns mainly have to do with the pipeline’s danger to the fragile ecosystem of the Salish Sea. TMX will more than double the flow rate of the existing pipeline, taking it from 300,000 barrels per day to 890,000 barrels per day. The diluted bitumen from Alberta will flow to Burnaby, BC where it will be loaded onto tankers for shipment to foreign countries.

The effect of increased tanker traffic is the major concern of coastal First Nations tribes. More tankers will increase the level of noise affecting the endangered Southern Resident Killer Whales of the area, making it more difficult for them to find food. The danger of tanker collisions and resulting oil spills is also a concern since very little is known about how diluted bitumen will react when spilled in sea water.

“What we constantly heard from Canada when we brought up all of these environmental concerns, tanker traffic concerns, was, ‘We will study this once the project is approved,’” Lewis said. “So they approved the project basically stating to the Squamish Nation that, ‘We’ll study this after the fact’ and the Nation took issue with that.”

What’s next now that the pinball has dropped?

Although the pipeline approval has made it through the court system, that doesn’t mean the tribes are totally defeated.

“The Squamish Nation will continue to exercise all available options to hold the government and the proponent to our standards, to higher standards, both for this project and any future project,” Lewis emphasized.

Rueben George, manager of Sacred Trust Tsleil-Waututh Nation, put the CSS denial of leave to appeal in perspective.

“Tsleil-Waututh means ‘People of the Water’ because their first mother came from that water. We see it that way and we look at it that way and we’ll do whatever it takes to protect it. First and foremost we’re taking this legal road. But we’ve always said we’ll do what it takes to protect it and this is a start.”

George, who is a Sun Dance Chief and also the grandson of the late actor Chief Dan George, sees the interconnectedness of all things and regards the waters of his tribe’s homeland as family. He doesn’t expect the government to understand. But he does expect that they open their eyes beyond the legal rhetoric and see the magnitude of the potential harm the pipeline will cause.

“We’re not asking for an apology from Canada for all the things that they’ve done, or permission to live the life that we do. But what we’re going to do is we’re going to make Canada accountable for what they’ve done and what they continue to do to our lands and waters.”

Frank Hopper is a Tlingit freelance writer, born in Juneau, Alaska.

*Cover photo: Rueben George pic by Vancouver Sun