Ottawa still didn’t consult properly on Trans Mountain: First Nations


CALGARY – The federal government failed again to properly consult with affected First Nations groups on the Trans Mountain pipeline expansion project, lawyers for groups opposed to the pipeline said Monday.

Lawyers for First Nations groups opposed to the Trans Mountain pipeline expansion project between Alberta and British Columbia argued before the Federal Court of Appeal in Vancouver on Monday that Ottawa, once again, had not upheld its duty to meaningfully consult with Aboriginal communities on the project.

Scott Smith, a partner with Gowling WLG acting on behalf of the Tsleil-Waututh Nation, referenced comments by Prime Minister Justin Trudeau and Finance Minister Bill Morneau that described the federal government’s commitment the project “will be built” and “to get shovels back into the ground” as evidence that Ottawa’s consultations were not meaningful.

Federal politicians, he said, were “unilaterally focused on approving the project.”

“The order-in-council must be quashed,” Smith said as he argued that the Appeals Court should overturn federal cabinet’s approval of the project because Ottawa had “once again fallen well short of the mark” on consultation.

In particular, Smith said the government withheld important scientific evidence and studies on environmental impacts from the Tsleil-Waututh during the consultation period even when those studies had been requested.

The three-day hearing is taking place in the Federal Court of Appeal in Vancouver, which agreed in September to consider concerns from the Coldwater Indian band, Squamish Nation, Tsleil-Waututh Nation and Ts’elxweyeqw Tribe that the government’s consultation with them this year was insufficient.

The legal challenge is the latest setback for Trans Mountain, whose previous owners first proposed the expansion in 2013. It is one of several stalled pipeline expansions proposed to ease congested export channels.

The Alberta government has curtailed production to prevent oil stocks from building up.

The Appeals Court has already ruled with the Tsleil-Waututh and against the federal government once, in August of last year when it found that Ottawa did not properly consult with affected Aboriginal groups and also failed to account for the 590,000-barrels-per-day pipeline’s potential effects on killer whales off the B.C. coast.

Since that time, Ottawa ordered a fresh round of consultations and also ordered the National Energy Board, now the Canada Energy Regulator, to reconsider its recommendation in favour of the project against the potential effects on killer whales.

When those concurrent processes ended, the federal government re-approved the project. This month, Trans Mountain announced the first stretches of the pipeline were being put in the ground along the route in Alberta.

Now, that second consultation process is in question again even as construction continues.

On the first day of the hearing, lawyers for both the Tsleil-Waututh and the Coldwater Indian Band argued that some of the same mistakes made during the first flawed consultation process had been repeated during the most recent consultations.

“Coldwater has never said no to this project but they have always maintained that the protection of their drinking water has got to come first,” said Matthew Kirchner, managing partner of North Vancouver law firm Ratcliff and Co. LLP, who is acting on behalf of Coldwater First Nation, near Merritt, B.C.

Kirchner said the band has “had to fight every step of the way” to protect the aquifer and argued that the federal government’s most recent consultations on the potential danger to the aquifer were inadequate.

A Canadian Natural Resources spokeswoman said the government approved the project after meaningful dialog with indigenous peoples, including new measures to accommodate their concerns.

The project, which will twin an existing pipeline between the Edmonton region and metro Vancouver, will cross the aquifer that supplies drinking water for the reserve, which is home to 300 of the band’s 850 members.

The federal government is scheduled to present its case on Tuesday. A Canadian Natural Resources department spokeswoman said the government approved the project after meaningful dialog with indigenous peoples, including new measures to accommodate their concerns.

Neither Trans Mountain Corp. nor the government of Alberta — listed as an intervener in this case — has presented oral arguments on the worthiness of the consultation process so far.

In Ottawa, Finance Minister Bill Morneau said the government hopes to eventually sell Trans Mountain and is open to indigenous groups being involved as owners.

“Our objective overall is to make sure the indigenous people along the route can be engaged, (and) that there could be benefits … for indigenous people more broadly.”

With files from Reuters

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