'A tough lesson': Do First Nations hold trump card on Trans Mountain debate?

Despite sparring between provinces and Ottawa, pipeline's future likely depends on court challenges

Posted: Apr 12, 2018 

Between boycotts, showdowns, shareholder action and emergency cabinet meetings, it's easy to overlook the lack of a crucial perspective in the white noise currently surrounding Kinder Morgan's Trans Mountain expansion project.

But if Indigenous voices are missing from this moment's very public pipeline debate, it's not because they're not speaking.

Or because John Horgan, Rachel Notley, Justin Trudeau and Steven Kean have drowned them out.

They're still making themselves heard where it's likely to matter most: the courts.

"The First Nations issues are fundamentally on their own track," says Robert Janes, a lawyer who has practised in the area of First Nations and treaty rights for more than two decades.

'A piece that gets easily overlooked'

Janes says that even if B.C., Alberta and Canada made peace tomorrow, giving Kinder Morgan the future "clarity" company chief executive Kean has demanded — crucial legal questions remain outstanding.

"The government can't just reach out and make the Aboriginal issues go away," says Janes, a principal with Victoria-based JFK Law Corporation.

"That is undoubtedly a piece that gets easily overlooked in this whole story, which is that this is not all just up to the governments to work out."

Trans Mountain says it has received endorsements from 43 Indigenous communities — 10 of them in Alberta — for the proposed twinning of the 1,150 kilometre pipeline from Edmonton to Burrard Inlet. 

The company engaged with 120 Aboriginal groups, two non-land based B.C. Metis groups and 11 Aboriginal associations, councils and tribes in the lead-up to the National Energy Board's approval.

But the fact remains that seven First Nations are among more than a dozen groups challenging the decision in Federal Appeal Court.

A victory there would force Ottawa back to the bargaining table.

And a loss would trigger a Supreme Court of Canada battle that could take up to another two years.

'We do have this power'

The legal arguments span tens of thousands of pages, but they boil down to core principles relating to Aboriginal title and the Crown's Constitutional duty to consult with First Nations in a meaningful way.

Rueben George, manager of the Tsleil-Waututh Nation Sacred Trust Initiative, says the courts have forced governments to listen to Indigenous voices in the past. He fully expects it to happen again.

"The last thing that the government wants to admit is that we do have this power," he says. "It's a tough lesson for them to learn."

A joint federal-provincial report released in November 2016 to assess the adequacy of the Crown's Aboriginal consultation recognized that "in the view of a number of potentially affected Aboriginal groups, not all concerns they raised have been expressly addressed or accommodated."

But the report concluded the consultation was "carried out in good faith and that the Crown's process of seeking to understand potentially outstanding issues and impacts was reasonable."

'Where the conversation breaks down'

As Janes explains it, the problems arise in the messy specifics of what matters to each individual First Nation along the route. Some are more directly affected than others. And all have specific concerns.

The NEB's 2016 decision lists just a few: the rights to hunt, trap fish and gather; the ability to harvest plants for traditional and medicinal purposes; potential impacts on specific spiritual and culturally significant sites; the "sense of place, privacy and quiet enjoyment ... essential to their cultural and sacred practices."

One group valued the importance of bathing in the waters of Burrard Inlet. Others pointed to the "cumulative effects of development activities" including large-scale residential, industrial and commercial projects.

"Aboriginal groups noted that the duty to consult is intended to advance reconciliation between Aboriginal people and the Crown by ensuring Aboriginal concerns are heard and considered and that Aboriginal rights are accounted for in decision-making, protected and accommodated," the NEB report said.

"Consultation must involve a dialogue with a genuine intention of understanding the rights and concerns of Aboriginal groups, and with an openness towards changing course if required."

Janes says the legalities are difficult for even veteran lawyers to tackle. And he's argued in Supreme Court.

"To describe it as complicated doesn't start to scratch the surface," he says.

"The real solutions here lie in diplomacy and not necessarily litigation or just trying to turn everything into a business deal."

'No guarantee ... we will be able to satisfy'

Of course, none of this comes as a surprise to Kinder Morgan Canada.

In suspending non-essential work on the pipeline this week, Kean cited "extraordinary political risks that are completely outside our control" as untenable for the shareholders bankrolling the $7.4 billion project.

His pronouncement sent one nation and two provinces scrambling.

But as his company's last annual report made clear, the leaders of many other nations — First Nations — may well have the final say.

"We have instituted policies to promote the achievement of participative and mutually beneficial relationships with the Aboriginal groups affected by our projects and operations ... and are committed to working with such groups so they may realize benefits from our projects and operations," the document says.

"Notwithstanding the efforts to this end, the issues are complex and the impact of Aboriginal relations on operations and development initiatives is uncertain.

"There is no guarantee that we will be able to satisfy the concerns of the Aboriginal groups and attempting to address such concerns may require us to incur significant and unanticipated capital and operating expenditures."

Not exactly words to warm a shareholder's heart.