A note from Discourse reporter Trevor Jang: Last month, I had the opportunity to work with some American journalists who were navigating the complexity of Indigenous land rights here in B.C. Reveal from the Centre for Investigative Reporting, based in California, had just wrapped up some extensive coverage of the Standing Rock protests over the Dakota Access Pipeline. The powerful display of Indigenous activism by the people at Standing Rock sparked their curiosity about a controversial oil pipeline to the north: Kinder Morgan’s Trans Mountain Expansion Project.
I spent a week travelling part of the proposed pipeline route to hold “listening events” with two members of the Reveal team. Reveal and Discourse share a key editorial principle: we want our reporting to be driven by what our audiences want to know. We met with people to discuss their questions and concerns about the project — and we heard a lot of interesting perspectives. The following story is an in-depth look at the project and the people it impacts, written for Reveal by their reporter Patrick Michels:
MERRITT, British Columbia — As police in riot gear swept the last protesters from camps near the Standing Rock Sioux Reservation in late February, two dozen men and women arrived in this small ranching and lumber town 1,500 kilometres to the northwest. They were armed with maps, posters, doughnuts and coffee, and hoped to sell locals on an oil pipeline — one larger and potentially more hazardous than the Dakota Access.
The 14 other First Nations directly on the pipeline route already had agreed to welcome crews onto their reserves in exchange for money and jobs from the company. By voting yes, the Lower Nicola could get a similar deal — a tempting offer in a remote community where many live in poverty.
Voting no would send a powerful message — a boost for the coalition of Indigenous people and environmentalists battling Trans Mountain. But it likely would be largely symbolic: In November, Prime Minister Justin Trudeau declared no First Nation would have veto power over this pipeline.
“Do we have every single landowner that’s in favor of it? No,” she said. The goal is “to come to a point where there is an acceptance of the pipeline going through their property.”
To gain such acceptance, the company has sent letters to and held meetings with not just the small group of First Nations along the pipeline, but with 118 others nearby. Fifty-one have signed agreements. Although the deals are confidential, the company has said they are worth nearly $300 million combined, a cost dwarfed by the pipeline’s price tag: $5.5 billion.
Hours into the Lower Nicola vote, elder Maria Savage walked slowly down the icy dirt road from the band office to her home. She’s against the pipeline, worried about the land and wildlife if there’s a spill. But the negotiations struck her as familiar, reminding her of her childhood, when the federal government forced Indigenous children into boarding schools.
“I heard they’re going to go through with the pipeline whether we agree with it or not,” Savage said. “You know, why ask us for our vote if they’re gonna put it through anyway? … That’s the same thing when they took us away and put us in the residential schools. Didn’t matter what we said or what we did.”
As in the U.S., by law, the Canadian government must consult with First Nations about major development on their land. Those consultations haven’t been the same as asking for permission. But recent rulings in Canada’s courts have said Indigenous people could stop a project by withholding their consent — especially in British Columbia, where First Nations never signed their land over in treaties.
The Canadian court cases are grounded in a growing recognition of the moral imperative of reconciliation between Indigenous and non-Indigenous people. At the same time, though, the government sees its untapped oil reserves as a key economic engine.
Just in time for the country’s sesquicentennial, the Trans Mountain project is forcing Canadian officials to decide how far they’re willing to go to honour First Nations’ rights.
Oil’s journey begins in Alberta
Kinder Morgan’s new pipeline is the middle step in the journey from Canada’s oil fields to the world market. Tanker ships will complete the trip from Vancouver to Asia.
But the journey begins in northern Alberta, about 2,000 feet below a thick forest of birch, fir, spruce and pine, in a layer of oily bitumen — a remnant of marine life that sank to the bottom of the sea that once covered the province. This tarry paste is what will fill the new Trans Mountain line, unrefined and diluted with a light mix of chemicals to ease the flow.
Bitumen from these oil sands fuelled a boom a decade ago, when high oil prices made it profitable to mine. Mining bitumen is expensive and energy-intensive, so with oil selling for about $50 a barrel now, there is less incentive to hurry it out of the ground. Kinder Morgan is betting on a future when the price of oil goes up again.
Far northern regions feel the effects of climate change first. In winter, truckers driving north from Fort McMurray to the village of Fort Chipewyan rely on a road of frozen rivers and wetlands. Lately, the road has been melting away earlier each winter.
This stretch of boreal forest has long been home to caribou, deer and black bears, and Indigenous Canadians who hunt and fish to survive. Around the mining operations that will supply Trans Mountain, road signs suggest great deference for wildlife: They warn of caribou crossing the highway and not to feed the bears. To some who knew the place before industry moved in, the signs are a joke: They don’t see much of those animals anymore.
Violet Clarke lives on a Fort McMurray First Nation reserve about a half-hour drive southeast of the city. Her grandfather ranched and trapped on this land. She grew up here in the 1930s, when just one struggling plant processed bitumen alongside the Athabasca River. As more companies have moved in, she said, the foxes that her grandfather used to trap on this land have disappeared. The frogs remain, but they’re often slicked in oil. The water has become so polluted that she said she’s been warned not to eat more than three fish a week.
In 2010, a study led by University of Alberta researchers, and prompted by concerns from elders such as Clarke, traced a number of carcinogens in the river to oil sands production. The most obvious evidence of trouble in the water is evident to fishermen who catch whitefish or burbot with back tumours and bulging eyes.
“There’s an awful lot of people that don’t want to talk about it, because an awful lot of people live off of the resources. And you can’t blame them in a lot of ways,” Clarke said. “Because industry, it’s first, because it brings your bread home.”
“But,” she added, “we had our bread before we got oil.”
Trans Mountain is one of four pipelines planned from the oil sands, along with TransCanada Corp.’s Keystone XL and Energy East and Enbridge Inc.’s Line 3. Thirteen oil producers have contracts for the new Trans Mountain line, lured by the promise of higher prices in Asia. The Canadian Association of Petroleum Producers projects that by 2030, annual oil sands production will increase 55 per cent from 2015, adding 1.3 million barrels a day.
That much business could fill the huge worker dormitories posted along remote stretches of Alberta’s highways. It could keep Fort McMurray’s extended-stay hotels and bars as busy as they were a decade ago. Canada’s official statistics agency says unemployment in Alberta has tripled in the downturn, from a low of 3 per cent in 2006 to 9 per cent last fall.
The recession had a pronounced effect on Indigenous Canadians, who already face severe disadvantages. Less than half of adults living on reserves are employed. Indigenous people account for about 4 per cent of Canada’s population but almost a quarter of its prisoners and nearly half its foster care system.
Fort McKay First Nation, a reservation in northern Canada, is home to nearly 400 Indigenous people. It began as a trading post for fur trappers, and the land continued to be used that way until the mid-20th century. Then trapping became less profitable, as petroleum operations started to surround the community. RACHEL DE LEON FOR REVEAL
One local chief says conservationists, not industry, are holding back progress.
In a December speech, Chief Jim Boucher of the Fort McKay First Nation told his counterparts that environmentalists were “the ones who, at the end of the day, were successful in creating poverty in northern Canada.”
“Please don’t buy into the environmentalist argument,” he said.
The Fort McKay First Nation is blessed and cursed with reserve land on the banks of the Athabasca in the heart of oil sands production. The wind blows a pungent smell from surrounding strip mines. Since Boucher’s band began doing business with industry in 1986, its corporation’s annual revenue has grown to $73 million. Even in the downturn, unemployment is close to zero.
Trans Mountain’s eastern end is anchored here in Alberta, where oil has built metropolises on the prairie. Strathcona County, near Edmonton, is a way station from the oil sands to the rest of the world, with pipes and tanks and towers tangled up like a huge high school chemistry project. Twenty pipelines converging underground at the Kinder Morgan terminal will feed the new Trans Mountain line.
One peculiarity of the fight over Trans Mountain is that it’s not a new route, but an expansion of an existing line. A larger pipe laid alongside the first will nearly triple the oil-carrying capacity to 890,000 barrels a day.
Trans Mountain was a source of national pride when it opened in 1953. It was Canada’s second major pipeline and its first one west across the Rockies. Tourists marked its debut with a bus and train journey to see where the pipe had been buried. Thousands toured the storage tanks near Vancouver. Politicians compared it to the first railroad across the Rockies and even “the first white man to traverse the northern continent from ocean to ocean.”
Kinder Morgan, a Houston firm once part of the fallen energy giant Enron, acquired the pipeline in 2005. By buying existing pipelines and expanding them, the company has become one of the largest operators in North America today, with 135,000 kilometres of pipe. The Trans Mountain project would add 615 more.
Skirting Edmonton to the south, the pipeline route cuts straight through fields and forests to the Rockies, where it crosses Jasper National Park. Kinder Morgan already expanded a stretch of pipeline there in 2008, a project that the company says demonstrates its approach to consultation with First Nations and its environmental stewardship. It was among the EcoHeroes of 2010 named by the industry-funded Alberta Emerald Foundation, in a class with BP Canada and a dozen others. In February, a company representative told a reporter with the Jasper Fitzhugh that the pipeline had never spilled in the park.
In truth, the company’s record has been mixed. As the Fitzhugh noted, the pipeline has leaked in the park at least six times, according to the company’s own reports, including a 1966 incident that released more than 290,000 gallons of oil. Since Canada began collecting reports in 1961, Trans Mountain has spilled its cargo 82 times, 12 of them since Kinder Morgan bought the line.
In 2007, a city contractor accidentally pierced the pipe in suburban Vancouver, opening a fountain of oil in the middle of the street. Sixty-two thousand gallons of crude oil ran to the sewer and into waterways. According to a government investigation, “a number of shore birds were contaminated after coming into contact with the oil.”
Kinder Morgan paid a $250,000 settlement that time, some of which went to an oil spill cleanup fund. Workers recovered most of the oil by scooping up soil and skimming the water’s surface.
Diluted bitumen from the new pipeline would be tougher to clean up. The largest test case so far is a 2010 spill from an Enbridge pipeline in Michigan, which released dangerous levels of benzene into the air and forced 150 families out of their homes. Unlike crude oil, bitumen sinks in water. Seven years later, over a million gallons of oil were cleaned up, yet clumps of bitumen still sit at the bottom of the Kalamazoo River.
Oil companies’ payments to communities are meant to smooth over concerns about risks like these.
But when the first Trans Mountain line went in, neither the company nor the government was obligated to consult First Nations. Indigenous Canadians weren’t allowed to vote in federal elections then and had only just gained the right to hire lawyers.
Today’s consultation over Trans Mountain bears the weight of that history. Many land defenders wonder how much has changed if construction plans can roll right along even though — as the resistance slogan goes — their answer is still no.
Chiefs make unilateral decisions for all
The president of Kinder Morgan Canada, Ian Anderson, has made an enthusiastic show of his outreach campaign with chiefs and councils. The company’s deals, Anderson has said, “represent not only an agreement to share opportunity and provide prosperity, but a symbol of recognition of a shared respect.”
But the chief-to-chief negotiations behind those deals are fraught from the start, rooted in the colonial system that carved up Indigenous nations into legally recognized bands and appointed a single chief to decide for the people.
Last year’s federal filings from the Tk’emlúps te Secwépemc nation showed about $2.2 million in a trust account labeled “Kinder Morgan mutual benefits agreement.” With fewer than 1,400 registered members, the deal is worth around $1,600 a person. First reported by the local paper Kamloops This Week, it’s the only deal amount that’s been made public.
In an interview, Chief Fred Seymour said the final amount could change. He said the deal includes a clause that would raise the payment to match any larger agreements Kinder Morgan might make with another nation.
But there was no vote on the deal. Instead, Seymour said he consulted about 100 people who spoke for families within his nation.
In the Alexander First Nation, near Edmonton, Kinder Morgan’s negotiators parachuted into a fiery internal conflict. Shortly after signing an agreement with the company, Chief Kurt Burnstick was tried for the sexual assault of another band member. He was cleared in January, but activists within the nation had marched through the reserve calling for his removal.
According to two activists, Janet Campbell and Rodney Yellowdirt, council members agreed to use First Nation money — including proceeds from its deals with oil and gas firms — to pay Burnstick’s defense team.
Burnstick would not comment for this story. For their part, Campbell and Yellowdirt supported the Trans Mountain agreement but said their experience exposes the fact that oil wealth doesn’t always benefit the community. Companies, they said, should keep track of where their money goes.
From Jasper, the pipeline runs westward down the Rockies along the Yellowhead Pass pioneer trail. It’s about 400 kilometres to Kamloops, where the line makes one of its two major river crossings, under the Thompson. Just north of the city sits the Whispering Pines/Clinton Indian Band reserve, home to a 162-person First Nation where Kinder Morgan negotiated its first deal for the project three years ago.
Michael LeBourdais, who was chief at the time, said the agreement is “equal to or greater than what we get now from the federal government.” In 2011, the most recent tally published by the government, the band received nearly $470,000 from Canada’s Indigenous affairs office. Kinder Morgan also agreed to extra safety precautions, LeBourdais said, such as laying thicker pipes where the line crosses waterways.
“There wasn’t a ‘Do you approve of this pipeline?’ question because they would never ask that,” LeBourdais said. “They asked about our thoughts, because we don’t have the right to say no.”
Today, LeBourdais is chairman of the Tulo Centre of Indigenous Economics, which offers financial skills training. He sees Trans Mountain as a teaching moment: He’s organizing a group of First Nations on the pipeline route to fight for the right to tax the oil, which he believes could yield an extra $73 million a year.
He said the plan would let his nation profit off its land while remaining good stewards.
“My grandfather always said, ‘There is no right and wrong in nature,’” he said. “‘There’s only balance.’”
Most important, he said, these financial arrangements are opportunities to force industry and government to recognize First Nations’ land rights — empowerment through bureaucracy.
“Tax represents jurisdiction,” he said.
A brutal history
LeBourdais’ office sits in a century-old building that stands as a testament to how brutally Canada has used its bureaucracy against Indigenous people. The steeple-topped brick behemoth was once the Kamloops Indian Residential School, one of 130 state-funded and church-operated facilities that carried out what the government called its “aggressive assimilation” program from the 1840s until 1996. While the city of Kamloops grew on the south side of the Thompson River, the school dominated the north bank.
Attendance was mandatory; over the decades, officials made sweeps to collect about 150,000 children. The system was modelled on similar U.S. boarding schools, which housed around 100,000 Native American children through the 1960s.
After the Kamloops school closed in 1977, local First Nations took ownership. Some hoped to see it torn down, but leaders decided to keep it for practical reasons — lots of office space — and to remind people across the river of the horrors that took place as they and their ancestors looked on.
LeBourdais is in his early 50s and attended a neighbourhood public school. But his parents were taken from home and brought to residential school. Even with LeBourdais working out of a big third-floor office, his father wouldn’t set foot inside.
“It’s creepy when you work here at night, that’s for sure,” LeBourdais said.
Men and women have come forward over the past decade describing beatings and sexual assault by priests who ran the schools. Thousands of children taken to the schools disappeared and are presumed dead. In the 1940s, federal researchers withheld rations from children at six schools to study the effects of malnutrition.
Much of what’s known about the schools came out in the final report of Canada’s Truth and Reconciliation Commission, which delivered its conclusions in 2015. By then, Canada had established a $1.4-billion fund for survivors of the residential schools. But the commission called for deeper change:
“Reconciliation is not about ‘closing a sad chapter of Canada’s past’ but about opening new healing pathways of reconciliation that are forged in truth and justice,” it said.
Aaron Sam represented hundreds of residential school survivors in their legal claims as a lawyer in Kamloops. He was 40 years old when the Lower Nicola Indian Band elected him chief in 2013.
“Residential school was a terrible place,” Sam said in an interview in the band office. “It was a place where our children were beaten down.”
Sam was raised on the reserve by parents and grandparents who attended residential schools.
“What happened at residential school … still affects all aspects of everything that happens in our communities politically, in the family and in places like this — in our offices — and even in our negotiation tables with these big multinational corporations,” he said.
Sam was an early critic of the way Canadian officials handled the Trans Mountain project. He was worried about the environment and believed the government’s consultation was too cursory. But he decided it was important that his nation reach a communal decision.
“The current pipeline’s been in the ground for over 60 years and, you know, if this one actually gets built, it’s going to probably be in the ground longer than that,” Sam said. “The decision we make, I believe, is going to affect our people for generations.”
So Sam and the Lower Nicola council negotiated a deal with Kinder Morgan, including cash payments, a new bridge and a new power line. It would take effect only if members approved it in a vote. This is the decision that Lower Nicola members were weighing at the company’s open-house meeting in Merritt.
The Lower Nicola have an activist streak, which surfaced in a 2015 fight against a program that trucked treated waste from suburban Vancouver into their valley. The campaign was successful, and “No Sludge” signs around the reserve still serve as reminders of that victory.
Near the end of the three-day vote, Sam wouldn’t guess the outcome or, if it failed, whether the Lower Nicola would file a court challenge, following the example of the nearby Coldwater Indian Band. But he explained why many probably would vote no.
“A lot of our people are still very, very reliant on our traditional foods, through hunting and fishing salmon in our rivers,” he said.
The pipeline and the river might run downstream to Vancouver, Sam said, but the fallout from a spill would ripple back up if the salmon died in an oil slick before coming upstream.
At the same time, he acknowledged many would welcome Kinder Morgan’s money. One of Merritt’s two big lumber mills closed in December, leaving hundreds jobless. For some, pipeline construction couldn’t start soon enough.
Protests along the way
In the late 19th century, government officials in most of Canada and the U.S. were busy applying a veneer of legality to their claims to Native land. But British Columbia remained an outlier. Colonial Gov. James Douglas signed a few land treaties on Vancouver Island, but no others in the province. Most of British Columbia remained “unceded territory,” a fact that people often recite at the start of community meetings.
Indigenous activist and author Arthur Manuel wrote that, while the government and private owners could buy and sell this land, their claims would only ever sit on top of the immutable Indigenous title. Manuel died in January, having spent his last months organizing to stop Trans Mountain.
Now his daughter Kanahus Manuel and her siblings have a plan to oppose the pipeline by establishing villages that run on a traditional way of life. Manuel lived at a protest camp near Standing Rock and wants to bring that spirit to the territory of her people, the Secwepemc. Their land once reached from Kamloops to Jasper National Park, an area larger than Missouri.
“That’s how we want to fight the pipeline … is being an example,” she said.
North in British Columbia, Indigenous protesters have spent seven years in a camp — called Unist’ot’en — organized on those same principles. In practice, it has stood in the way of a series of pipelines planned through the forest, but its organizers describe it is a “homestead” and “not a protest or demonstration.”
“Every single man, woman and child has a right, and a say, about whether we consent to a pipeline or not. But right now, there’s no process for Indigenous peoples to say no,” Manuel said. “When we go out and say, ‘Let’s assert it. Let’s go out and occupy the land to stop the ski resort or the mining,’ then we are criminalized.”
Clashes between police and Indigenous protesters have turned violent before, famously at a golf course in Oka, Quebec, in 1990 and at Gustafsen Lake, northwest of Kamloops, five years later. A 2015 report revealed that the Royal Canadian Mounted Police have targeted Indigenous environmental activists for surveillance.
Kinder Morgan Canada President Ian Anderson knows protesters are eyeing his project.
“They’ll look for soft spots in the system,” he told reporters last fall, “and it’s my job to make sure there aren’t any.”
As the Trans Mountain pipeline nears Vancouver, it runs underneath increasingly resistant communities. From Kamloops and Merritt, it crawls down sheer cliffs and canyons, emerging into the farmland of the Fraser Valley, and then heads west toward the sprawl of Vancouver. It ends in the waterfront suburb of Burnaby, where contractors pierced the pipe a decade ago and residents are wary of another spill. The mayor has tried to bar the company’s workers from city land.
If demonstrators do make a stand against the pipeline, many people expect Burnaby will be the spot. Recent history offers a lesson in how the company and police might respond.
In August 2014, Kinder Morgan wanted data on the geological makeup of Burnaby Mountain, where the company plans to bore a tunnel connecting its storage tanks to its shipping terminal near Vancouver. When workers began clearing trees to make way for drilling equipment, a few locals began a protest. Within days, it was an occupation.
One of the early demonstrators was Stephen Collis, a poet and writing professor at Simon Fraser University, which sits atop Burnaby Mountain. His writing often touches on themes of resistance and revolution. He helped rally the crowd by posting updates in a Facebook group.
In late October, Collis received notice that Kinder Morgan was suing him and four other demonstrators for disrupting its work. The company wanted more than $4 million from the protesters for getting in the way.
Separately, Kinder Morgan requested a federal court order to clear demonstrators from its work site. An environmental advocacy firm filed a challenge to block it, but before a judge ruled, Mounties began clearing the camp.
The arrests began early on a Thursday morning, roughly at first, as officers in yellow vests dragged demonstrators from their tents.
After two days, the police operation took on a ceremonial air. Mounties hung police tape from the trees, and protesters volunteered each morning to cross the line. A video from the last day of arrests shows Grand Chief Stewart Phillip, British Columbia’s highest-ranking chief, carefully ducking under the tape and onto the protected work site, holding on to an officer’s hand for support.
He and more than 100 others were arrested. Their charges later were dismissed because the company had listed the wrong coordinates on its court order.
Collis and four other protesters watched from behind bulletproof glass in a downtown Vancouver courtroom as Kinder Morgan’s attorney, William Kaplan, argued why the five owed the company millions. At one point, he said protesters had intimidated pipeline workers by making angry faces.
At another, Kaplan read one of Collis’ recent poems as evidence of his complicity: “As barricades were assembled from garbage dumped down a hillside from a parking lot in Burnaby Mountain … an old rusted oil barrel was uncovered and rolled up the hill. It’s a talisman, a symbol of the old world we are trying to resist and change. It is, we hope, the last oil barrel that will have anything to do with this mountain forest.”
“So,” Kaplan told the judge, “underneath the poetry is a description of how the barricade was constructed.”
Collis and other protesters remember the ordeal as a darkly comic time — but the company’s show of legal force offered enough cover to let workers finish their job. On the day Kinder Morgan’s lawyers argued that Collis and the others were disrupting their work, the job was done. Helicopters were lifting the drilling gear off the mountain. Kinder Morgan dropped its suit soon after.
Legal challenges ahead
Through Burnaby Mountain, the oil will run one last line before being loaded onto ships to take it across the sea.
After a journey that began on the prairie, in the shadow of smokestacks and office towers, the Trans Mountain line emerges into a different world. Tankers load the oil at a terminal in the still Burrard Inlet, surrounded by forested hills and expensive homes. Today, about one tanker loads up each week; if the second pipeline opens, the rate will increase to one a day.
This new traffic is at the centre of opposition here to Trans Mountain.
The Tsleil-Waututh Nation, whose name means “people of the inlet,” sits a couple kilometres across the water from the terminal.
“When this project came into our territory, it was not a matter of whether we could profit off of it economically, but just really preserving who we are or what we are,” said Tsleil-Waututh council member Charlene Aleck. “We reached out to our community, and everybody just saw no huge benefits, even though there was millions of dollars offered.”
Thousands of Tsleil-Waututh once lived in villages on the water around Vancouver, but their population was cut to dozens amid 19th-century conflict and epidemics introduced by white settlers. They survived by adapting to life in the growing port city, working as longshoremen. Much as Fort McKay leaders have capitalized on resource extraction, Tsleil-Waututh leaders have built a tourism company, a driving range and real estate developments with waterfront views.
With the money from those projects, they’ve teamed with other First Nations nearby to buy more land. They’ve led initiatives to restore the salmon population that has suffered in polluted port waters. And they’ve repeatedly fought back plans, such as the Trans Mountain expansion, that would industrialize their coastline.
“A project like this would totally decimate any kind of work that we had been doing for the last 15 years,” Aleck said.
She and other Tsleil-Waututh leaders have become some of the pipeline’s most outspoken opponents. But they mostly stepped aside during the Burnaby Mountain protest in 2014, and Chief Maureen Thomas has made it clear she doesn’t want to see “another Standing Rock” here.
“We each have a piece of the puzzle,” Aleck said, “and Tsleil-Waututh has always been trying to go by legal means.”
They’ve joined other First Nations in legal claims accusing the government of approving the pipeline without proper consultation.
It’s a claim similar to one the Standing Rock Sioux made in American courts. But in Canada, a series of landmark Supreme Court rulings suggest there’s a chance for success. The Tsleil-Waututh’s challenge is one of nine currently pending against the pipeline in British Columbia’s federal courts, seven of them from First Nations, that could build on recent legal precedent.
The Canadian Supreme Court ruled in 2014 that bands in British Columbia had the right to stop a logging operation on land occupied by their ancestors. Last year, a federal appeals court threw out the government’s approval for another big pipeline through British Columbia, called the Northern Gateway, agreeing that Indigenous people on the route hadn’t been consulted adequately.
On the campaign trail in 2015, Justin Trudeau pledged that, as prime minister, he’d honour the recommendations of the Truth and Reconciliation Commission, including that “Aboriginal peoples need to become the law’s architects and interpreters where it applies to their collective rights and interests.” Trudeau also said he’d implement the United Nations Declaration on the Rights of Indigenous Peoples, which requires that Indigenous people consent to development on their land.
On Trans Mountain, though, Trudeau’s decision wasn’t so simple. Noting that there are First Nations on both sides of the issue, he has said no single group can block it. His approval of the project at the end of last year was part of a political compromise on climate change, combining new pipelines with mandatory carbon caps across Canada.
Ian Campbell, chief of the Squamish Nation near Vancouver, said that the decision seemed like a foregone conclusion — and that Trudeau delegated the government’s consultation to Kinder Morgan.
“We felt that that was inappropriate because the duty of consultation lies with the crown,” he said.
The Squamish also have challenged the pipeline approval in court, claiming the government failed in its constitutional duty to consult them. Campbell believes more should have joined the cause.
“I’m certainly disappointed that some of the First Nations would accept what I equate to be some trinkets,” he said.
How much consultation is enough? What should that consultation look like? And how many First Nations must support a project before it can proceed? These questions are part of a rapidly shifting area of Canadian law — a delicate dance between the competing goals of development and reconciliation.
The Tsleil-Waututh and the other First Nations challenging the Trans Mountain approval could be the ones that set the next precedent.
Along a beach near the Tsleil-Waututh reserve, smooth rocks and weathered shells crunch underfoot. The shells are remnants of mussels and clams eaten by Tsleil-Waututh ancestors. Since the oil tankers began arriving 60 years ago, Aleck said, their wakes already have washed away some of the beach.
“There was no consultation that happened,” she said. “They just kind of came into the territory and told us that they would make our land prosperous for us and that we would see jobs come out of it. Kind of like what they’re saying today.”
On the Tsleil-Waututh reserve, a totem pole overlooking the inlet stands as a symbol of their resistance to the pipeline. Four salmon swim in a circle around the pole’s base, signifying their charge to protect the water. The main figure is a wolf, the symbol of the Tsleil-Waututh. According to the band’s origin legend, the creator transformed a wolf into its first member and made him protector of the land.
In between the salmon and wolf, two men and a boy are standing up, carrying the fight from one generation to the next.
‘Our voice is important’
Voting on the Lower Nicola deal with Kinder Morgan ended Feb. 25. By the time Chief Aaron Sam arrived that night at the meeting hall, the votes had already been counted. One-fifth of the nation’s 964 registered members had weighed in: 111 in favour and 75 opposed.
Kinder Morgan now could claim support from all of the First Nations directly on the pipeline route.
After the vote, Sam was as careful with his words as he’d been before. He and the council would get to work finalizing the deal, he said. “Sometimes, you have to put your personal feelings aside.”
But the results put him in the mind of the recent past, when his people’s stewardship of the land wasn’t even in question, and of a future — not here yet, but drawing nearer — when they can claim that role again.
“In our territory, it was 1808 when Simon Fraser first came down the Fraser (River),” Sam said. “And the area didn’t have a lot of settlers in here until the middle or late 1800s. And back then, it was our land.
“And I think as people become educated and learn and realize that we have a real voice, and that what we decide actually matters, then people are going to say, ‘We have a voice. Our voice is important.’
“And we’re not going to ask people to listen to us, right? They’re going to have to listen to us.”[end]