First Nations say they have the power to stop Trans Mountain expansion

TheSt:l collective of First Nations in British Columbia is very familiar with the transport of oil. Theexisting TransMountain pipeline has crossed through theirland for more than 50 years. CN Rail also carries oil by rail directly across St:lterritory to the B.C. coast.

So, the collective of eleven First Nations in B.C.'s Fraser Valley came to consultations with Kinder Morgan for the expansion of TransMountainwith an open mind.

"We have taken time to speak to Kinder Morgan," said Ernie Crey, the chief of the Cheam First Nation, a member of thecollective.

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"We've also weighed and considered a new pipe versus seeing all this bitumen moving along the rail lines straight through many of our communities. Some of the houses in our communities are literally feet from the rail line."

But Crey said the nations were also concerned about the pipeline's proximity to the Coquihalla River, which feeds into the Fraser River.

Ithink their responsibility and duty goes much deeper to usthanto send a few public officials to [a] meeting with us for an hour or two.- Ernie Crey, St:l Collective

"The FraserRiver isthe most productive salmon-bearing stream on Earth and we depend on the annual runs of salmon."

A breach of either the oil or new TransMountain pipeline in the summer months would be disastrous for the salmon run.

Pipe versus rail

"We weighed and considered a pipe versus all this product being moved by rail and we considered what was the wiser of two difficult choices, bitumen by rail and bitumen by pipe and we thought the safer bet might bebitumen by pipe," said Crey.

But theSt:l did not sign onto the project, a sign that the consultations done by Kinder Morgan,considered acceptable by the National Energy Board,did not go far enough to convince even those who had an open mind about the pipeline expansion.The St:l are not formally opposed to the project either, as one of the nations most affected by the expansion, they simply remain to be convinced.

That does not leave an easy job forthree-member panel appointed this week by the federal government to further consult with communities along the route.

Creysaid that representatives from Natural Resources Canada have visited the St:l in recent weeks.

"They've made a one-time pass through our community.I've referred to it as a drive-by consultation," said Crey. "Ithink their responsibility and duty goes much deeper to usthanto send a few public officials to [a] meeting with us for an hour or two."

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Farther down the pipeline route, the Tsleil WaututhFirst Nation has little faith that the panel will be able to bring opponents onside.

The territory of the Tsleil-Waututh includesthe Burrard Inlet, which would see increased tanker traffic if TransMountain is approved. The First Nation is steadfastly opposed to the project and plans to challenge it in the courts.

"They did that NEB processin 25 months," said Rueben George, a spokesmanfor the Tsleil Waututh."And you're going to try to take care of that big mess in fourmonths, that's ridiculous."

Consult or consent?

George said that the legal landscape has changed for First Nations and resources development.

"First Nations are winning 97 per cent of our court cases around resource extraction. That's 170 legal cases in the last couple years. That's a lot of veto power right there."

The most significant case fought by First Nations was decided in June, 2014, by the Supreme Court of Canada, which ruled thatprovincial and federal governments must win consent of Aboriginal groups when regulating economic activity on titled lands, unless it can show a pressing public need for that activity.

That case was brought forward by theTsilhqot'in nation in response to clear-cutting of trees on its territory. Since the decision, there has been a shift in which First Nations now feel that the duty to consult means corporations and government really need to seek consent.

"We've been doing the traditional'duty to consult' types of processes for 10 or 15 years," said Bruce McIvor, a lawyer with First PeoplesLaw.

Courts will ultimately decide

"But since the Tsilhqot'indecision in 2014 andthe full adoptionof UNDRIP[The United Nations Declaration on the Rights of Indigenous Peoples]by the federal government, we're moving out of that need-to-consult type of processand we're moving toward consent-based consultation. That's where we're going."

McIvor said the National Energy Board decision yesterday, or the final decision by cabinet in December, will not be the last word on TransMountain.

"The process that the NEB went through will be reviewed by the courts and if the courts find that it doesn't live up to the government's obligations under Section 35 of the constitution, it has a wide latitude to null the decision to tell them to go back and do it again."