Indigenous communities cautious as feds restart pipeline talks, commits to not appealing Trans Mountain court decision

OTTAWA — Indigenous communities are open to a new consultation on the Trans Mountain pipeline expansion, but many are greeting its launch with some caution.

 

The Liberals said Wednesday that they won’t appeal the August decision from the Federal Court of Appeal that tore up cabinet approval for the pipeline’s expansion.

 

Instead, Natural Resources Minister Amarjeet Sohi said that the government is hiring former Supreme Court of Canada justice Frank Iacobucci to oversee a new round of consultations with affected Indigenous communities using the road map for those consultations the court laid out in its decision.

 

Iacobucci’s first order of business will be to oversee the process to design the consultations in concert with First Nations and Metis leaders. Consultations themselves won’t start until that design phase is completed, and there is no timeline for that.

 

Squamish First Nation, which has thus far opposed the construction of the pipeline, welcomed the decision not to appeal in a statement, but appeared wary about the new consultation process.

 

“Our nation expects an honourable consultation process that upholds our nation’s Indigenous rights,” said Khelsilem, a band councillor and spokesman for Squamish. “The Trudeau government tried to ram this project through our territory with a predetermined outcome and this was not acceptable to Squamish Nation or the courts.”

 

Khelsilem added artificial timelines would not be acceptable.

 

In the appeal, Squamish leaders told the court they didn’t feel they had enough information to decide how risky the pipeline was to their territory, which includes Burrard Inlet, the narrow waterway through which as many as 35 oil tankers would travel each month carrying diluted bitumen away from the pipeline’s marine terminal in Burnaby.

Chief Michael LeBourdais, of Whispering Pines Clinton Indian Band near Kamloops, said the new consultation is “extraordinarily ambitious.”

 

Whispering Pines supports the pipeline and was the first to sign a benefits agreement on the pipeline with Kinder Morgan Canada, which owned the pipeline until Aug. 31, when the federal government bought it for $4.5 billion

 

LeBourdais said the consultation is another opportunity to push for better benefits for First Nations, including a percentage of the value of the oil that flows through the pipeline, or an equity stake in the project.

 

The Trans Mountain pipeline expansion proposes to twin the existing pipeline that runs between Edmonton and Burnaby in order to triple its capacity and carry 600,000 barrels of diluted bitumen daily to oil tankers bound for export markets.

 

After being elected in 2015, the Liberals added another phase of consultations with Indigenous communities on the project hoping to overcome shortcomings in the process the court identified in the review of the now defunct Northern Gateway pipeline.

 

In its decision, the Federal Court of Appeal found that additional phase was only a note-taking exercise and that the government incorrectly believed it could not do anything about specific concerns raised, such as by altering the route to move the pipeline away from one community’s only source of drinking water, or ensure another community would be involved in deciding exactly where certain elements of the pipeline would be built on their territory.

 

Chief Michael LeBourdais, of Whispering Pines Clinton Indian Band near Kamloops. PNG FILES /PROVINCE

Sohi said an appeal of the decision would take years and the government would rather respect the courts — a decision that riled Alberta Premier Rachel Notley, who said the Liberals should pursue an appeal in tandem with new consultations.

 

Sohi said the government planned to put additional people on the file and ensure all government employees involved have a clear mandate not just to listen to concerns, but to figure out how they can be reasonably accommodated.

 

However, Sohi said reasonable accommodation does not mean every First Nation has to be on side before the project can proceed.

 

“We also understand there are still groups that will still oppose this project,” he said. “That’s fine. That’s their right to do so. But that does not mean that if we fulfil our constitutional obligation that those groups may have a veto to stop this project.”

 

NDP MP Romeo Saganash questioned whether the government could call the consultations meaningful when it is adamant the pipeline expansion proceed.

 

“Does the prime minister not recognize that consulting when the decision has already been made is not consultation as required by the Supreme Court of Canada?” Saganash asked in question period Wednesday.

 

Sohi said the government has made no assumptions about what cabinet will eventually recommendations, but the government still believes the project is in the national interest.