First Nations vow to fight Trans Mountain despite NEB approval Gordon Hoekstra

The First Nation question — can aboriginal opponents stop Kinder Morgan’s $6.8-billion Trans Mountain pipeline expansion — looms large after the project passed a major hurdle with approval Thursday from the National Energy Board.

Some First Nations, including the Simpcw in the Interior, are supportive. But key First Nations on the coast remain opposed, including the Tsleil-Waututh, Squamish and Musqueam. First Nations in the northwest U.S. are also opposed and reiterated their opposition Thursday, saying they were “extremely” disappointed with the NEB decision.

B.C. Environment Minister Mary Polak also weighed in, saying First Nations opposition and concerns remain significant.

Ultimately, Prime Minister Justin Trudeau’s Liberal government will have to make a hard decision on the project.

The project would twin the 1,150-kilometre pipeline from Edmonton to Burnaby and triple its capacity, opening up new markets in Asia for Canada oil, which the NEB found was ultimately in the national interest.

Legal experts says Canadian law does not give First Nations the power to halt projects, but court challenges can stall projects and challenge the notion that companies have support to go ahead.

That has proved true for another major oil pipeline proposal, Enbridge’s $7.9-billion Northern Gateway project, which despite federal government approval in 2014 remains in limbo in the face of stiff First Nation’s opposition in B.C. The company has just sought a three-year extension for its project approval.

First Nations have also been gathering considerable clout as mounting court decisions — including the 2014 Supreme Court of Canada decision that granted the Tsilhqot’in title to 1,740 square kilometres of traditional territory in the Interior — have pushed the consultation and accommodation obligations for governments to a higher threshold.

Rueben George, who heads the Tsleil-Waututh’s opposition to the Trans Mountain expansion, said Thursday it will be business as usual as his community continues to oppose the project.

The First Nation, whose traditional territory takes in Kinder Morgan’s tanker berth in Burnaby, already has a legal challenge underway, launched in 2014.

“I am really confident in the Canadian Constitution protecting our indigenous rights. I am confident we still have veto power over this,” said George, noting First Nations had racked up 170 legal victories in Canada.

The Tsleil-Waututh’s main concern is the effects of an oil spill, which they say is more likely because the project will increase oil tanker traffic nearly sevenfold to about 400 visits a year in Burrard Inlet. Kinder Morgan has said it will mitigate the increased risks of oil spills by increasing tug escorts in inland ocean waters and beefing up spill-response capacity.

University of B.C. law professor Gordon Christie said while First Nations legally cannot stop a pipeline, it is as much a political matter as a legal one, particularly given the promises of the federal Liberal government.

Trudeau’s government has pledged to listen to First Nations’ concerns and give them a bigger say on resource development.

But the government has been giving more positive signals on oil pipelines recently, signalling they are interested in getting crude from the Canada oilsands to the coast.

“What this particular current federal government does is the big unknown. That’s really the wild card right now,” said Christie.

The decision-making has also been complicated with an announcement this week by the Trudeau government of a second “parallel” panel to gather information from the public and indigenous communities on the Kinder Morgan proposal. It’s an effort to restore public trust in the review process, which the Liberals say was undermined under the previous Conservative government.

That three-member panel — which includes former Tsawwassen chief Kim Baird — must file a report by November, a month before the extended deadline for the federal cabinet’s decision.

Kinder Morgan has remained confident that it has been adequately addressing First Nation concerns, noting in its final arguments to the NEB that it has support from 30 First Nations in British Columbia and Canada.

The company just signed a benefits agreement this week, of which the details were not disclosed, with the Simpcw First Nation, north of Kamloops.

On Thursday, Kinder Morgan issued a short statement saying it was pleased the project was found in the public interest.

The NEB imposed 157 conditions on Kinder Morgan in the areas of engineering, safety, environmental and emergency preparedness. Among them:

• Kinder Morgan must carry $1.1 billion in liability insurance.

• It must detail its plans to reduce and offset greenhouse gas emissions.

• Conditions also set out consultation requirements with First Nations that the company must meet.

• The company must also prepare a plan for a potential spill on its Burnaby Mountain’s tank farm. The conditions also entrench the company’s pledge on increased tanker escorts and marine spill response.

The NEB decision was welcomed by business groups such as the B.C. Chamber of Commerce, but criticized by environmental groups such as the Wilderness Committee.

Vancouver Mayor Gregor Robertson said he was profoundly disappointed with the recommendation and planned to work with other local governments and First Nations to push back.

“This project is a direct threat to Vancouver’s successful economy and environment,” Robertson said, adding that increased tanker traffic could put Vancouver’s tourism industry at risk.

The NEB’s approval did little to sway the B.C. government, which repeated Thursday the Kinder Morgan project has failed to meet its five conditions of environmental review, oil and land spill response, First Nations consultation and a fair share of economic benefits for B.C.

“We have set the bar high for a reason,” Polak, the B.C. environment minister, said.

Kinder Morgan alone can’t satisfy all the conditions, meaning Ottawa will have to step in and help beef up marine oil spill prevention and response in particular, she said.

With files from Rob Shaw and Matt Robinson.



Peter McCartney, Climate Campaigner with the Wilderness Committee:

“I shouldn’t be surprised, but this is an outrageous decision. The NEB has ignored and wasted the time of countless communities, First Nations and individuals who have stood up to oppose this irresponsible pipeline proposal.”

Maureen Kirkbride, B.C. Chamber of Commerce interim CEO:

“This project is a big economic win for B.C. and for Canada. This project will bring construction, operations and other indirect jobs to B.C., while enabling our national oil resources to reach Asian markets.”

B.C. NDP leader John Horgan:

“This was Stephen Harper’s broken and unfair approval process, and Christy Clark hid behind it. British Columbians can’t help seeing this as a rubber-stamp approval that fails to meet the concerns we all have with this proposal.”

Canadian Association of Petroleum Producers CEO Tim McMillan:

“This decision is a milestone for the future of Canada. The NEB is sending a clear message to Canada: building the infrastructure to get our resources to market is in the best interests of our country.”

Burnaby Mayor Derek Corrigan:

“It’s never really over in political events when people haven’t been able to speak … This will affect candidates across the province, many of them new MPs. Trudeau might have second thoughts.”

Mel Sheldon, Tulalip Tribes chairman in Washington state:

“The fishing grounds of the Salish Sea are the lifeblood of our peoples. We cannot sit idly by while these waters are threatened by reckless increases in oil tanker traffic and the increased risk of catastrophic oil spills.”

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