FEDERAL COURT OF APPEAL RULES AGAINST KINDER MORGAN AND GOVERNMENT OF CANADA

FEDERAL COURT OF APPEAL RULES AGAINST KINDER MORGAN AND GOVERNMENT OF CANADA

Crown fails to look-out for the best interests of the Band

FOR IMMEDIATE RELEASE - Coldwater, BC, September 27, 2017:  On September 26, 2017, the Federal Court of Appeal issued a ruling against Kinder Morgan Canada and the federal government in relation to the existing Trans Mountain Pipeline.  The federal government failed in its legal obligation to act in the best interests of the Coldwater Indian Band when it approved the transfer of a 1952 authorization to use Coldwater’s reserve for the pipeline to Kinder Morgan. Specifically, the Minister of Indian (now Indigenous) Affairs failed to ensure the terms authorizing Kinder Morgan’s use of the reserve were updated from outdated 1952 terms in order to protect Coldwater’s interests in its land.

Coldwater Indian Band is located about 12 km south of Merritt BC and has about 860 members, approximately half live on their Reserve.  The existing Trans Mountain Pipeline was constructed through their Reserve in 1952 for which they received a one-time payment of $1,292. 

The Court held that the Minister breached the fiduciary obligation owed to the Coldwater Indian Band when approving the transfer of the existing Trans Mountain Pipeline easement through the Coldwater’s reserve from Terasen Inc. to Trans Mountain Pipeline in 2014.  The Minister approved the transfer of the easement without properly scrutinizing the transaction in accordance with the legal duty owed to Coldwater.  The Court stated:

            “In the circumstance, particularly in light of the importance of Coldwater’s interest in its reserve lands, the Crown was under a continuing duty to preserve and protect the Band’s interest in the reserve land from an exploitive or improvident bargain”.
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            “The Minister’s failure to assess the current and ongoing impact of the continuation of the easement on Coldwater’s right to use and enjoy its lands rendered his decision unreasonable.”

Coldwater Chief and Council were very pleased with the result.  “We are very happy that the Court recognized the importance of our land to the Coldwater people and that it is holding the Crown to a high standard of conduct in making decisions about our land,” said Coldwater Chief Lee Spahan.  “The Council has always believed that the Minister was not looking out for our best interests in this deal and it is gratifying to finally have that confirmed by the court.  Now things must change.  This is a great day for Coldwater and all First Nations.”

The pipeline still runs through their reserve in the easement that was the subject of the Court’s decision.  Kinder Morgan has been planning to increase the throughput in this existing line by 50,000 barrels per day under the proposed Trans Mountain Expansion Project. The Federal Court of Appeal’s decision is referred to as Coldwater Indian Band v. Minister of Indian Affairs and Kinder Morgan Canada Inc. 2017 FCA 199.

Coldwater will be back in Court on October 2, 2017 regarding the Trans Mountain Expansion Project and Canada’s failure to protect the Band’s drinking water. 

Contacts:         Chief Lee Spahan, Coldwater Indian Band:  250-378-7495
                        Matthew Kirchner, Legal Counsel:  604-786-0451