Image by Brian Zinchuk for Pipeline News.
Tansi Nîtôtemtik,
In May, 2018, the Government of Canada purchased the Trans Mountain Pipeline Expansion Project (TMX) and its related assets from Kinder Morgan for $4.5 billion.[1] While the Government of Canada intends to put the pipeline back into the private sector, the TMX is presently under government control. With an expected “$46 billion in government revenues…in the first 20 years of operation,” the TMX is “Canada’s rise to the challenge of delivering oil extracted with stringent regulatory oversight and environmental protection to meet the world’s energy needs.”[2]
A large part of the construction of the TMX is the imperative consultation with Indigenous groups. Minister Morneau, Canada’s Finance Minister, said that these consultations are being guided by four main principles:
- The potentially impacted Indigenous communities would have an opportunity for meaningful economic participation in the project;
- Indigenous groups’ participation could help the economic development of their communities, in keeping with the spirit of reconciliation;
- The government invested in the TMX to benefit all Canadians; and
- The project would be built and operated on a commercial basis.[3]
The Duty to Consult
The duty to consult is a constitutional duty[4] imposed on the Crown when “the Crown proposes action that may adversely affect Indigenous rights or title.”[5] Consultation is a legal obligation, even where Indigenous rights are asserted but not yet proven.[6] Failure to engage in meaningful consultation with Indigenous groups could lead to the quashing of the project, as was demonstrated in the Federal Court of Appeal’s 2018 case of Tsleil-Waututh Nation v Canada (Attorney General) (“TWN 2018”).[7] One of the two reasons for quashing the TMX was the Crown’s failure to appropriately discharge its duty to consult with affected Indigenous groups.[8] In particular, “Canada’s efforts fell well short of the mark set by the Supreme Court of Canada” in Phase III of the consultation framework.[9] Canada “failed in Phase III to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns.”[10]
Two weeks ago, the Federal Court of Appeal, in Coldwater First Nation v Canada (Attorney General), approved the TMX expansion.[11] This is a major development in the TMX story and we will be addressing this decision in a spotlight post this Friday on the blog.
History of the Duty to Consult
Particulars of the duty to consult are set out in the 2004 Supreme Court of Canada (SCC) decision of Haida Nation v British Columbia (Minister of Forests).[12] In that case, it was recognized that the government’s “duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown.”[13] The case also outlined that “the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.”[14]
In Delgamuukw, [former] Chief Justice Lamer explained the nature and scope of the duty to consult:
The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to title…In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.[15]
In cases where deep consultation is required, the SCC in Haida Nation stated:
While precise requirements will vary with the circumstances, the consultation required…may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact the had on the decision. This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases.[16]
Furthermore, consultation is to be done “with good faith to provide meaningful consultation appropriate to the circumstances,”[17] and must be responsive to Indigenous concerns.[18] These components of consultation play a large role in the current TMX proposal as there are “120 Indigenous in communities in Alberta and BC along the Trans Mountain pipeline’s corridor,” each with unique interests and rights affected.[19]
Indigenous Concerns
Many Indigenous groups have strongly opposed the TMX expansion. While the “[former] Natural Resources Minister Amarjeet Sohi… met with 65 Indigenous groups across 46 meetings,” many Indigenous groups remain unsatisfied.[20] Chief Leah George-Wilson for the UBCIC stated that:
Tsleil-Waututh again engaged in consultation in good faith, but it was clear that the federal government had already made up their mind as the owners of the project.[21]
There are many concerns that Indigenous groups have with the TMX expansion. For instance, the Coldwater First Nation “sits on an aquifer of potable water that they can drink without treatment.” A groundwater specialist determined that should the expansion proceed, it would cut through this aquifer, leading to concerns that a spill is imminent.[22] For Chief Spahan of the Coldwater First Nation, a spill “is not a matter of if…but when.”[23]
Further still, Merle Alexander, “who represents the Shxw’owhamel First Nation near Hope, British Columbia” was once in favour of the pipeline but is now opposed to its expansion.[24] The biggest concern for this Indigenous community is that “an oil spill would destroy its sacred burial and archeological sites as well as the community’s sole source of water.”[25]
Conclusion
The TMX Project has been a continuous development over the last number of years and is a topic that is constantly evolving. Indigenous communities are being affected by the proposed project and new developments stemming from the 2020 Federal Court of Appeal decision will be numerous.
Until Next Time,
Team ReconciliAction YEG
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[1] Robyn Finley, “Radically Refining Roles: Proposed Indigenous Ownership of the Trans Mountain Pipeline” (18 November 2019) Burnet, Duckworth & Palmer LLP Energy Newsletter, online: <www.bdplaw.com/publications/> [Finley].
[2] Ibid.
[3] Ibid.
[4] See R v Kapp, 2008 SCC 41 at para 6.
[5] Finley, supra note 1
[6] Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 35 [Haida Nation].
[7] “Trans Mountain Expansion Project” Major Projects Management Office of the Government of Canada, online: <www.mpmo.gc.ca/measures/256>; Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153 [TWN 2018].
[8] TWN 2018, ibid at para 6.
[9] Ibid.
[10] Ibid.
[11] Coldwater First Nation v Canada (Attorney General), 2020 FCA 34.
[12] Supra note 5.
[13] Ibid at para 16.
[14] Supra note 6.
[15] Delgamuukw v British Columbia, [1997] 3 SCR 1010 at para 168.
[16] Haida Nation, supra note 6 at para 44.
[17] Ibid at para 41.
[18] Tsleil-Waututh Nation, supra note 7 at para 6.
[19] Ibid.
[20] “With Trans Mountain Expansion Greenlit Again, Indigenous Leaders Vow to Fight On” (18 June 2019) Global News, online: <www.globalnews.ca/>.
[21] Ibid.
[22] Nick Purdon & Leonardo Palleja, “Trans Mountain Pipeline: Why Some First Nations Want to Stop It – and Others Want to Own It” (5 October 2019) CBC News, online: <www.cbc.ca/news/>.
[23] Ibid.
[24] Camille Bains, “6 First Nations Launch New Court Challenge to Trans Mountain Pipeline” (9 July 2019) CBC, online: <www.cbc.ca/news/>.
[25] Ibid.
