Trans Mountain and the Honour of the Crown: Indigenous legal challenges, round two

First Nations announce a new round of TMX legal challenges (Photo: Eugene Kung)

August 21, 2019

The federal cabinet’s re-approval of the Trans Mountain Pipeline and Tanker Expansion Project (“TMX” or “the Project”) on June 18, 2019 was hardly shocking news. After all, federal cabinet ministers have been saying for years that ‘the pipeline will be built.’ They even spent $4.5 billion of public money to bail out the project when pipeline company Kinder Morgan decided to abandon it.

The only surprises – sad ironies really – were the fact that the approval came just hours after the federal government declared a climate emergency, and the Prime Minister’s paradoxical definition of free, prior and informed consent as described in the press conference following the approval.

Predictably, the second round of approval faces a second round of legal challenges. According to the Federal Court of Appeal Registry, twelve parties have applied for leave to judicially review the cabinet approval, including eight First Nations, two environmental groups, the City of Vancouver, and a collective of youth climate strikers.

In the first round of lawsuits, six First Nations, environmental groups and municipal governments challenged the original 2016 approval at the Federal Court of Appeal (FCA), and won a decisive victory in August 2018 (the Tsleil-Waututh case). That decision quashed the approvals, and sent the Project back for a redo of the National Energy Board review and constitutionally-required consultation with impacted Indigenous peoples.

We have reviewed thousands of pages of legal documents to provide the following highlights from the applications to the court. In this post, we’ll start by reviewing the timeline of events since the Tsleil-Waututhdecision and provide an overview of the law on consultation. Next, we highlight some of the overlapping key arguments from the eight First Nations Applicants, followed by a few specific examples from each Nations’ pleadings, starting from the west and heading east.

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Chiefs Announce National Day of Action Against Canada’s Termination Agenda

Canada continues to ignore First Nations’ land and inherent rights by pretending to have support for it’s 1969 white paper policy and pretending that the AFN speaks for First Nations’ peoples. As Canada shovels money and promises to the AFN while squeezing Indigenous communities, the Trudeau government’s policy of deception provokes a National Day of Action.

Image result for Okimaw Henry LewisChiefs, activists vow to fight what they call Trudeau’s ‘White Paper 2.0’ plan

Okimaw Henry Lewis stated, “Canada must STOP hidden agendas with First Nations.”

Treaty No. 6, 7 and 8, MASKWACIS, AB, May 6, 2019 /CNW/ – The Chiefs of Sovereign and Treaty Nations have consistently told Canada, “Nations don’t make laws for other Nations”.  Despite numerous attempts to work with the Federal Government, Canada continues to unilaterally develop laws and policies without our right to free, prior and informed consent.  “As sovereign Nations, treaty and title holders, I refuse to allow Canada to continue on with its genocidal laws and polices that are deliberately created to destroy our Nations and peoples.  No outside government will tell me how to exercise my Nations international right to self-determination in our sovereign treaty territory,” stated Alexander First Nation, Chief Kurt Burnstick.

Although Minister Bennett announced last week that Canada would not proceed with replacing the land and inherent rights policies that threaten our rights, the Chiefs of Sovereign and Treaty Nations are announcing the launch of a National Day of Action in the coming weeks to stop Canada’songoing termination agenda.  “Canada has never stopped trying to implement their 1969 white paper policy which is meant to domesticate our international Treaties, turn us into municipalities and remove us from our lands.  We must stand in unity as Chiefs and peoples to fight off this agenda for our children and future generations,” stated Onion Lake Cree Nation Okimaw Henry Lewis.     MORE

SOVEREIGNTY: DO FIRST NATIONS NEED IT?

Image result for two-row wampumIn our canoe we have all our laws, culture, and beliefs and in your vessel you shall have all your laws, culture, and beliefs, traveling side by side through life as equals never enforcing or interfering in each others affairs as long as the sun shall shine the grass shall grow and the rivers shall flow this will be everlasting.

…It is beyond dispute that at the time of contact Indigenous Nations were politically independent and governing themselves under there own laws. When sovereignty’s synonyms are considered, words such as jurisdiction, power, authority and control are found. I would argue that, since the Supreme Court of Canada has required a First Nation claiming Title to show ‘exclusive possession” which is jurisdiction and control, then that First Nation would also prove their Sovereignty.

Finally, International Law requires that Nation States must not interfere with the internal affairs of other Nation States. To do so would be a violation of recognized sovereignty.

The concept of sovereign non-interference is not exclusive to modern International Law. This concept has been foundational to the initial relationship between European newcomers and Indigenous Nations. Treaties were forged on this concept, most notably the Two-Row Wampum covenant that makes clear the principle of non-interference and mutual respect are the foundation of every Treaty. The principle of ‘non-interference’ is a necessary component of the International legal understanding of Sovereignty.

Why Exert Sovereignty?

The need to exert sovereignty by Indigenous Nations flows from the Colonizer’s assertion that the Crown became sovereign over all the lands and peoples living upon Turtle Island at “Discovery”. The Doctrine of Discovery and the concept of terra nullius meaning – ’empty land’ are the legal foundations upon which European Crowns made pompous claims of sovereignty over Indigenous lands and populations. The Courts have used these doctrines and principles and upheld them to find in favour of the Settler State. MORE

Glavin: Pipeline protests – how politicians got it all wrong


Alex Spence, centre, who is originally from Haida Gwaii, beats a drum and sings during a march in support of pipeline protesters in northwestern British Columbia, in Vancouver, on Tuesday. DARRYL DYCK / THE CANADIAN PRESS

There may be no right way to do fossil-fuel megaprojects at all anymore if we’re going to have a hope in hell of meeting our 2015 Paris Climate Accord commitments, but as far as the massive LNG Canada Kitimat plant and pipeline project goes – with the showdown this week on a remote British Columbia backroad that immediately escalated into protests and marches and sit-ins across the country – the politics, promises and planning seem to have gotten just about everything wrong.

It’s the aboriginal rights and title of the Wet’suewet’en people that are at stake here, and that’s the subject that the federal Liberal government, and B.C.’s NDP government, are trying to avoid.

You could start with the way Prime Minister Justin Trudeau cheered LNG Canada’s announcement last October that the green light LNG got from B.C’s NDP government meant full steam ahead for its long-planned $40 billion project, which is to include a new pipeline from Dawson Creek in the Peace River country to a liquifaction plant and export facility at Kitimat on the B.C. coast. MORE