First Nations renew court battle to stop Trudeau and Trans Mountain


Members of Tsleil-Waututh Nation gather around, with lawyer Merle Alexander, Tsleil-Waututh Chief Leah George-Wilson and Skeetchestn Indian Band Kukpi7 Ron Ignace at centre front row in Vancouver, B.C., on July 9, 2019. Photo by Stephanie Wood

First Nations have taken their first step to bring the federal government back to court over its approval of the Trans Mountain expansion project.

Six First Nations, including Squamish Nation, Tsleil-Waututh Nation and Coldwater Indian Band, announced today they have officially petitioned the Federal Court of Appeal to review Prime Minister Justin Trudeau’s second approval of the pipeline.

Chief Leah George-Wilson of Tsleil-Waututh Nation said Canada was “not responsive” to concerns that came up during the consultation process, including those relating to the risks and costs of an oil spill, the impacts on southern resident killer whales and encroaching on Indigenous rights and title.

“Tsleil-Waututh participated in the consultation in good faith, again. But it was clear that Canada had already made up their mind as the owners of the project,” she said. “We have no choice but to appeal again, and we expect the same result: that the approval will be overturned.”

The nation will also argue that the government’s $4.5-billion purchase of the west coast pipeline system created a conflict of interest.

“Canada is biased. The federal government is in a conflict of interest as the owner, the regulator and enforcer, as well as the fiduciary for First Nations,” George-Wilson said.

Under Canada’s Constitution, federal government has a legal duty to consult First Nations on decisions that could affect their rights or way of life. But the Trudeau government failed to do this the last time it tried to approve the pipeline in November 2016.

As National Observer reported in April 2018, government insiders say senior public servants privately ordered them to find a way to approve the project before Trudeau announced his decision, despite telling Indigenous leaders the government was still consulting them. MORE

Trudeau’s paradoxical definition of Indigenous consent

The federal government’s skewed view of Indigenous consent, and its apparent conflict of interest on the pipeline, could pose a legal problem.

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Photo: Indigenous drummers perform a drum circle prior to a demonstration against the approval of the Trans Mountain pipeline, in Victoria on June 22, 2019. THE CANADIAN PRESS/Dirk Meissner

he latest cabinet approval of the Trans Mountain pipeline came less than a day after the federal government declared a climate emergency. While the irony was a dream for satirists, it wasn’t the biggest contradiction of the day. Instead, it was Prime Minister Justin Trudeau’s bizarre definition of free, prior, and informed consent (FPIC) with regard to projects that will impact Indigenous land and rights: “[FPIC] is what we engaged in doing with Indigenous communities over the past number of months. It is engaging, looking with them, listening to the issues they have and responding meaningfully to the concerns they have wherever possible.”

By Trudeau’s definition, consent is: listening to issues, responding to concerns wherever possible, and then forging ahead. As Indigenous lawyer and scholar Pam Palmater pointed out, imagine if that definition of consent was applied in the context of sexual relations?

The prime minister’s comments largely went unnoticed in the mainstream media, but his government’s skewed understanding of FPIC and half-hearted attempts at consultations with Indigenous communities remain the core reason it will be unable to move the project forward. Moreover, Ottawa’s purchase of the pipeline created an inherent conflict of interest as it purported to sit down for meaningful consultations.

“Listening to the issues”

So, what exactly was the government “engaged in doing” with Indigenous communities since last August, when the Federal Court of Appeal found that “Canada did not fulfil its duty to consult” on the pipeline and quashed the National Energy Board’s approval of it?

Many of the First Nations that had appealed to the court expressed their dissatisfaction with the renewed Stage III consultation process that the court had mandated.

The Squamish First Nation said it had been assured there were no time limits for the consultations, only to discover that cabinet did have an end date in mind. Khelsilem, a Squamish Nation spokesperson, told a news conference that they had been sent documents for feedback after May 22, the federal government’s self-imposed deadline for comments.

“What we experienced was a shallow attempt at consultation that resulted in a failure to address our concerns,” said Khelsilem. “The failure to meaningfully engage with rights holders means this government is either not serious about building this pipeline or not serious about respecting Indigenous rights.”

Chief Lee Spahan of Coldwater Indian Band said, “The meaningful dialogue that was supposed to happen never happened.” A study of the community’s aquifer had not yet occurred, and an existing pipeline spill has yet to be remediated.

Chief Leah George-Wilson of the Tsleil-Waututh Nation said that consultation once again fell well below the mark set by the Supreme Court of Canada in a number of key decisions, including Tsilhqot’in. This constitutional obligation of the Crown’s was re-emphasized in the Federal Court of Appeal ruling. George-Wilson also noted that the federal government was in a conflict of interest – that its multiple hats as proponent, decision-maker, enforcer of laws and fiduciary to First Nations and all Canadians made it impossible to make an open-minded, unbiased decision.

Trans Mountain consultation approach ‘fatally flawed’ even with extension, says First Nations leader

The Trudeau government is in a clear conflict of interest as owners of the TransMountain pipeline and their duty to consult with the traditional legitimate title holders. Expect litigation and more delay.

‘Extending the timeline doesn’t address all these issues and approach to consultation,’ says Judy Wilson


Kukpi7 Judy Wilson, elected leader of the Neskonlith band and a member of the executive branch of the Union of B.C. Indian Chiefs, sent a letter to Prime Minister Justin Trudeau critical of the consultation process on the Trans Mountain pipeline. (Chantelle Bellrichard/CBC)

Even if the time period for consultation with Indigenous groups over the expansion of the Trans Mountain pipeline is extended by a few weeks, “it still doesn’t make up for the approach and the flawed way the consultations are being done,” says one B.C. First Nations leader.

Kukpi7 Judy Wilson, elected leader of the Neskonlith band and a member of the executive branch of the Union of B.C. Indian Chiefs, sent a letter to Prime Minister Justin Trudeau earlier this week in which she described the consultation process as “fatally flawed” and detailed several critiques of the process that’s currently underway.

Amarjeet Sohi, Minister of Natural Resources, announced Thursday the consultation timeframe would be extended by a month, based on requests from Indigenous groups and advice from former Supreme Court of Canada justice Frank Iacobucci who is leading the government’s efforts on consultation for the proposed expansion.

“Extending the timeline doesn’t address all these issues and approach to consultation,” said Wilson.

Among her criticisms is that Canada is in a “clear conflict-of-interest” when it comes to fulfilling its obligations to Indigenous groups, especially since it purchased the project from Kinder Morgan.

“As pipeline owners, they have a constant bias now because they’re looking at the interest of the pipeline as a national interest versus their Crown role for consultation to our Indigenous Peoples,” said Wilson in an interview Thursday.

She is also critical of the consultation process itself, because “it’s still bypassing our proper title holders, who are our people … they’re relying mainly on the band construct, which the federal government created,” she said.

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