If Canadians knew their own history, the National Energy Board hearings on the Kinder Morgan pipeline might not have been declared inadequate by the Federal Court.

The NEB failed to consider the impact on coastal waters and didn’t adequately consult Indigenous people, the court ruled.

Those errors could have been avoided if the NEB followed the model of the Berger Inquiry on the Mackenzie Valley Pipeline, generally considered the gold standard for such reviews.

In the early 1970s Canadian Arctic Gas Pipelines, a consortium including the world’s big oil companies, wanted to build a natural gas pipeline from Prudhoe Bay, Alaska, across the northern Yukon (near the village of Old Crow) to the Mackenzie Delta, then south along the Mackenzie River Valley and through Alberta to the United States. It was to be the longest pipeline ever built and the most expensive private construction project in the world.

A solar array in the village of Old Crow. Photo: Matt Jacques / The Narwhal

The federal government, led by Pierre (not Justin) Trudeau, felt there had to be adequate consultation with the people who would be affected by the construction of this vast project.

On March 21, 1974, Justice Thomas R. Berger of the B.C. Supreme Court was appointed to head a royal commission. Berger was a former NDP MP from B.C. and had been both an MLA and led the provincial New Democrats. Perhaps more importantly, as a lawyer he had argued the famous Calder case, which led to the recognition of Indigenous rights and title to traditional territories.

As long as it takes

Berger’s mandate was to examine the social, economic and cultural impact of the vast project. He wasted no time, setting up preliminary hearings in April and May 1974.

This was a smart move: it allowed him to feel out the players, particularly the interested parties other than the pipeline companies. It also allowed him, with input from the parties, to define and even expand his terms of reference. So, the mandate (expanded) was clear and the interested parties brought into the fold.

Then Berger did a quick tour of the Western Arctic. I recall him travelling by Jet Ranger helicopter from Inuvik across the north shore of the Yukon, looking down on wolves, bears and migrating caribou, and going over the British Mountains to the village of Old Crow, still without roads to the outside world today.

When Berger landed on the Old Crow airstrip, an RCMP van came to pick him up for the short trip into town. Berger, a son of an RCMP officer, declined politely and walked into town with Chief John Joe Kaye, who invited him to his house for a caribou diner. In spite of a stomach problem, the judge immediately accepted.

The chief asked whether Berger’s inquiry would come to Old Crow and, if so, how long it would stay. Berger replied that yes, the inquiry would come to Old Crow, as it would to all the villages affected by the proposed pipeline. He would listen to all the people and stay as long as it took. Other government officials had a pattern of flying in and out the same day.

Then Berger, to the consternation of Ottawa, announced the inquiry would be delayed a year. In that year he sent University of British Columbia professor Michael Jackson, with his family, to visit the Indigenous communities and explain the inquiry to the people.

Berger Inquiry. Photo: Michael Jackson / Prince of Whales Northern Heritage Centre

This later resulted in enormously successful community hearings where people were prepared and spoke in an informal setting, in their own languages, to Berger.

The CBC reported these hearings in six languages. The north was connected. When Globe and Mail columnist Martin O’Malley joined the hearings and wrote about them, southern Canada was enthralled. Canadians think of ourselves as northern peoples but this was the first time most of us had seen the real north.

Berger did come back to consult Old Crow. I was lucky enough to witness the hearing there. Here is what I wrote at the time.

“I am Judge Berger. I am here to listen,” he said at the beginning of the hearing. And listen he does, with dogged patience. He looks at each witness and doesn’t interrupt. He is in his shirtsleeves now, his corduroy jacket on the back of the chair. An unused ashtray is there to gavel the meeting to start. “I find that I am learning a great deal from all that you have told me.” When the attention begins to wane he will take a break, but until then he is alert for each witness. There is respect, on both sides.

After almost a week in town Judge Berger thanks the interpreters and the people for the friendship they extended to him, his staff and to the members of the CBC and press and the participants in the Inquiry. “These people from the CBC and the Press come along with me to enable you to tell the people of the north and the people of Canada what you think.” He explains that he’s going on tomorrow to visit the whalers from Aklavik out on the Mackenzie Delta and then he’s going back to Yellowknife and later to Fort Liard in the southern Mackenzie to hold another community hearing. “I have to hear what all the people in the Mackenzie Valley and the Mackenzie Delta and the northern Yukon think of the pipeline, then I have to send a report and recommendations into the government, and when I am considering what I will recommend to the government, I will be thinking about what all of you have said to me over these three days about the land and about your way of life.” His comments are interpreted and then there is applause. He heard from 81 people in this village of 250. And he would visit another 30 settlements to hear people in five other languages. On adjournment the Inquiry Staff and the Judge would play baseball with the locals under the midnight sun.

As well as community hearings, formal hearings were held under commission counsel Ian Scott and Stephen Goudge and a series of funded interveners cross-examined Arctic Gas experts on such topics as building in discontinuous permafrost.

Berger asked UBC law professor Andy Thompson to round up the environmentalists into one group and, for the first time, secured intervener funding for them (thanks to a young, Jean Chrétien, who was the minister responsible for Indian and Northern Affairs).

Berger fashioned a standard for intervener funding — a clear interest that ought to be represented at the inquiry, a distinct interest, a record of concern, inadequate resources to represent that interest and a plan as to how the intervener would use and account for the funds. He also ordered all the parties to release their reports, including Arctic Gas, to create a level playing field.

Southern Canadians were also consulted by means of open hearings in our largest cities. The inquiry even made a short film showing a bit of the northern community hearings and then identifying Arctic Gas and other official interveners. I was shown just before the southern hearing witnesses testified before Berger, this time in a suit. When people from Halifax complained that inquiry staff had not scheduled a hearing there on the grounds the pipeline was in the west Berger overruled the staff. “The Maritimers are Canadians too,” he said. “They too should be heard.” And they were.

The hearings had another happy result. A generation of young native leaders got to appear before the judge, as their parents were less comfortable in English. What a generation it turned out to be.

Nellie Cournoyea worked with the Committee for Original People’s Entitlement, which was the Inuit group. Later she became a member of the Legislative Assembly of the Northwest Territories and premier.

Dave Porter, who used to carry the equipment for the CBC crew, became a great aboriginal leader in the Yukon.

Jim Antoine, then the quiet but charismatic 26-year-old chief of the Fort Simpson Dene, also later became premier of the N.W.T. George Erasmus cut his teeth before the inquiry appearing for the Indian Brotherhood of the N.W.T. (later named Dene Nation). He later became national chief of the Assembly of First Nations and co-chair of the Royal Commission on Aboriginal Peoples.

A boyish Stephen Kakfwi helped organize the Dene’s presentations to Berger. Later he became president of the Dene Nation and premier of the Northwest Territories and a supporter of a future pipeline.

All told Berger held hearings in log cabins, village halls, besides rivers, and in hunting and fishing camps throughout the Western Arctic. There are 8,438 pages of transcripts in 77 volumes and 662 exhibits from these “community hearings.”

When the southern hearings concluded on Nov. 19, 1976, there were 900 pages of submissions and over 40,000 pages of transcript and more than 1,500 exhibits. The inquiry cost $5.3 million which was a remarkably modest number given the magnitude of the job.

On April 15, 1977, Berger released Volume I of his report, a mere 200 pages, beautifully written and filled with pictures of our stunning north. Volume 2 followed with more technical recommendations to be implemented if and when gas was to flow done the Mackenzie Valley. The work turned out to be among most popular commission reports ever.

Overall, Berger recommended a pipeline down the Mackenzie Valley corridor, but called for a delay of 10 years in construction to give time for the settlement of native land claims along the route. Most of them are now settled.

However Berger recommended that no energy corridor should be created in the Northern Yukon. Instead, the report said, a national park should be created in the Northern Yukon to protect the calving grounds of the Porcupine Caribou herd. A wilderness park called Ivvavik was established in the northern Yukon in 1984, and one called Vuntut in 1995. They are both part of the Inuvialuit (Inuit) and Vuntut Gwich’in (First Nations) land claims settlement. That means, says Berger, both parks are constitutionally entrenched: their character and boundaries cannot be altered except by constitutional amendment. Canada has done its part to save forever the migrating caribou. (The Americans have not.)

On the trail of the Porcupine caribou herd

Indigenous peoples as partners, not bystanders

And the results today?

Land claims have been settled and a possible new pipeline has been proposed, then shelved. This time, the consortium of resource companies (Imperial Oil, Shell, Exxon) had a new partner, with a one-third interest — the Aboriginal Pipeline Group, which represented the Indigenous peoples of the N.W.T. Its website said: “We are committed to respecting the people of the North and the land and environment that sustains them.”

The market is not yet ripe for Arctic gas but if that happens, Indigenous people, properly consulted and heard, will be partners, not bystanders.

Can lessons taught by Berger many years ago be applied today to the Kinder Morgan issue? Coastal First Nations and environmentalists, if really consulted, have a lot to tell us about protecting the waters and the animals. No doubt they will mention the poor response to the 2015 oil spill from the MV Marathassa into English Bay.

Can there be a better spill cleanup system? Can there be perhaps fewer tankers than originally proposed? Can there be a new site for the terminal; say Cherry Point in Washington or another nearer to the open ocean? Can there be another way to consult and meet the concerns of First Nations?

A former Supreme Court of Canada justice, Frank Iacobucci, has been given the task of doing proper consultations. He’s a person not unlike Berger.

Berger taught us something critical about consultation. You have to listen, be patient and show respect.

Then you actually implement what you hear.

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The B.C. Oil and Gas Commission (OGC) was “unreasonable” and “intransigent” in its dealings with the Fort Nelson First Nation as the regulator considered and eventually approved a 39-kilometre natural gas pipeline in endangered boreal caribou habitat, according to the B.C. Supreme Court.

The natural gas pipeline, proposed by Calgary-based Rockyview Resources, would have run through Fort Nelson First Nation territory, resulting in 78 hectares of disturbance to caribou habitat. Fort Nelson First Nation is located in the Horn River Basin unconventional gas play, which makes it a fracking hot spot.

In a recent ruling, the court found the Oil and Gas Commission refused to discuss issues related to the pipeline and its impacts on the Maxhamish caribou range. Caribou are provincially and federally recognized as a species at risk and 84 per cent of boreal caribou habitat in B.C. falls within Fort Nelson First Nation territory.

“The OGC failed to talk to us,” Fort Nelson First Nation Chief Harrison Dickie said in a statement. “It is gratifying to have the court state that we were the ones acting reasonably in the process.”

In an oral ruling, Madam Justice Gerow described the Oil and Gas Commission, B.C.’s pipeline regulator, as uncompromising and said it failed to consult adequately with First Nations who acted reasonably in their engagement with regulators. The court overturned the pipeline’s June approval and awarded court costs to the First Nation.

Fort Nelson First Nation and nearby gas plays. Image: B.C. Gov 

“When the Commission’s initial response is that it would not discuss concerns and was satisfied that there would be no material impact [on the caribou habitat], it cannot be said that Commission was willing to engage in consultation,” Justice Gerow stated.

The Court found the OGC was strict in designating which topics would and would not be discussed in a meeting. Chief Dickie described the consultation process as running “into a brick wall.”

The B.C. government recently announced it would adopt the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), a document designed to safeguard the principles of free, prior and informed consent when consulting with indigenous peoples. In a recent press briefing B.C. Environment Minister George Heyman said the province hopes to revise the B.C. environmental assessment process, bringing project proponents into meaningful consultation with First Nations from the start.

“We want a new environmental assessment process that respects the legal rights of First Nations as well as our commitment to the UN Declaration on the Rights of Indigenous Peoples, the Tsilhqot’in decision and the Calls to Action of the Truth and Reconciliation Commission,” Heyman said.

Chief Dickie, who has previously said his nation is open to development on its traditional territory, said his nation’s concerns were not adequately addressed by the Oil and Gas Commission.

“If our concerns with appropriate caribou management had been taken seriously by the OGC and by the pipeline company, Rockyview Resources, this project may well have proceeded.”

In February 2017 the province committed $27 million to enhance caribou recovery in B.C. In response to the gas pipeline proposal, the Fort Nelson First Nation developed a caribou recovery plan the nation says the Oil and Gas Commission refused to consider.

The commission considered it impractical to consider the nation’s caribou plan, resulting in the regulator using “inadequate and incomplete data to determine that the proposed pipeline poses ‘no material adverse effect’ to the caribou populations in the area,” the Fort Nelson First Nation said in a previous statement.

About 728 boreal caribou remain in B.C. with five range areas, most in the north-east of the province. The pipeline would have crossed the Maxhamish boreal caribou range where the population has decreased to from 306 to 104 animals since 2004 with consistently low calf survival rates, according to FNFN numbers.

In an information bulletin, the B.C. Oil and Gas Commission stated: “The Commission will study the decision, and is committed to making any necessary improvements to its consultation and decision-making processes to address the Court’s direction and to facilitate a strong working relationship with Chief Harrison Dickie and his community.”

The proposed gas pipeline and a related storage facility was scheduled to begin construction north of Fort Nelson in the coming weeks, according to a press release provided by the Fort Nelson First Nation.

“It is gratifying to have the court state that we were the ones acting reasonably in the process.” https://t.co/fT5kdZivFu

— DeSmog Canada (@DeSmogCanada) December 19, 2017

“I hope that the OGC has learned a lesson from this,” Chief Dickie said, “that the way forward is to have an open dialogue rather than being inflexible and trying to force its agenda at the expense of legitimate First Nation concerns.”

Fort Nelson First Nation previously won a case challenging a provincial water licence that had been granted to Nexen. The licence, which allowed the company to withdraw 2.5 million cubic metres of water, was withdrawn in 2015 after the Environmental Appeal Board found the province failed to properly consult the First Nation and to employ adequate scientific modelling.

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B.C. hasn’t been particularly good at including Indigenous populations in the decision-making process. First Nations are often brought to the table after high-level political decisions have already been made — leading to significant social and legal conflict over consultation, consent and the management of natural resources.

Legal challenges of Site C, the cumulative impacts of B.C.’s sprawling oil and gas operations and the Kinder Morgan Trans Mountain pipeline are all current examples of what these conflicts look like.

But it doesn’t have to be so, say a team of researchers from by the University of Victoria’s POLIS Water Sustainability Project and the Centre for Indigenous Environmental Resources in a new report, which proposes B.C. manage water resources via a co-governance model based on a principle of collaborative consent.

“Imagine Indigenous people being involved at the highest level of policy-making and reaching an agreement that is good for everyone,” said Merrell-Ann Phare, founding executive director of the Centre for Indigenous Environmental Resources and lead author of the report.

Water is a good issue for the collaborative consent approach as it concerns everyone in a community, Phare said.

Disputes between government and Indigenous communities are often clouded by a perceived need for legal clarity on rights, but there are many areas where, even without legal clarity, different levels of government are able to work out solutions, she added.

“We need to pull up the chairs to those tables for Indigenous governments and we need the federal and provincial governments to recognize that,” she said.

“Indigenous governments have a right to be there.”

Collaborative consent would not mean an end to legal challenges, but it would help find solutions to some of the battles that continue for generations, said Phare, adding that B.C. would not be breaking new ground as territorial and Indigenous governments in the Northwest Territories already use a collaborative consent approach.

Cowichan Watershed Revitalization a Collaborative Consent Success Story

A little more than a decade ago, the Cowichan watershed was a mess.

Clearcuts on surrounding slopes intensified run-off during winter storms. A 2003 drought resulted in critically low water levels that made it impossible for Chinook salmon to reach spawning grounds. Future droughts were on the horizon and water quality was threatened by sewage, fertilizer and a rapidly expanding population.

Catalyst Paper — the largest employer in the area — was on the verge of shutting down because of a water shortage.

“The management situation of the day was not working and the risks to the river and its communities were great,” says a 2014 case study of the evolution of the Cowichan Watershed Board by the University of Victoria’s POLIS Water Sustainability Project.

Management of the watershed was spread among a patchwork of federal, provincial, Indigenous and local governments, while waterfront home owners and local businesses wanted input on how to deal with ongoing droughts and the shrinking salmon runs.

There was general acknowledgement that action was needed to save Cowichan Lake and the iconic Cowichan River, but with the jigsaw of federal and provincial acts and the need for Cowichan Tribes to protect their interests, little was accomplished.

A 2007 plan set out a proactive approach to water management, but, two years later, implementation was minimal, largely because of lack of leadership and scattered responsibilities.

It was clear that a different type of management was needed, with local leadership, so, the Cowichan Watershed Board was formed with the chair of the Cowichan Valley Regional District and chief of Cowichan Tribes as joint chairs, while other agencies were encouraged follow board decisions.

That style of management typifies collaborative consent, which should be the model used in B.C. to defuse conflict around water and land use, the new report recommends.

Resolution for System of Delays, Court Cases with Water Co-Governance

Conflicts could be avoided if Indigenous governments were given an equal seat at the table at the start of a process, instead of being brought in after decisions are made, says the report.

Delays, court cases and disagreements are common as Indigenous communities battle to protect traditional territories, while other levels of government and, in some cases, major corporations, write legislation or set the rules, only to have them challenged by First Nations, who frequently claim inadequate consultation.

Collaborative consent, with all parties committed to working together as equals, takes the heat out of issues as everyone works towards decisions they can live with, says the report, which suggests that the method should be used to come up with regulations for B.C.’s new Water Sustainability Act.

Rosie Simms, co-author of the report and POLIS water law and policy researcher, said collaborative consent offers a way for B.C. to govern according to the United Nations Declaration on the Rights of Indigenous people, as promised by Premier John Horgan.

Water is a compelling issue because jurisdictional overlaps and gaps pave the way for creative forms of co-governance, Simms said.

Indigenous History, Lessons Benefit Local Government

Back in the Cowichan Valley, the collaboration has helped people understand the extent of Cowichan Tribes’ history in the area and traditional knowledge is now used to help inform decisions, said Chief William Seymour.

“We all have the same concerns about our watershed. The logging that went on and what happened to our streams, what happened to our water levels and the water temperature, all the issues of contamination with sewage and fertilizer going into the river — everyone in the valley has those concerns,” Seymour said.

With everyone working towards the same goals, protection of the watershed is improving, he said.

Jon Lefebure, Cowichan Valley Regional District chair, said an excellent relationship has developed between Cowichan Tribes and the district because of the equal partnership on the Watershed Board.

“It has flowed into many other things we do around land use and the opioid crisis — which has an impact on all parts of our community,” he said.

The relationship has also brought local government a new awareness of First Nations culture and the advantages offered by their history and perceptions, Lefebure said.

For example, there is an emphasis on taking only what you need and leaving the rest for future generations, as opposed to the culture of taking all you can and damn the consequences, he said.

Priorities for the watershed are based on looking at the whole system, rather than individual pieces and are guided by a traditional Cowichan Tribes lesson that “everything on this earth is what sustains us, everything on this earth is connected together,” says the POLIS case study.

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By Ash Kelly and Brielle Morgan for Discourse Media. For a full, interactive version of this investigative piece, visit Discourse Media.

For more than 5,000 years, First Nations people have collected plants and harvested red cedar on Lelu Island, which sits where the Skeena River meets the Pacific Ocean near Prince Rupert in northern British Columbia. Adjacent to some of the most critical salmon habitat on the West Coast, Lelu Island is considered so valuable that, according to local Indigenous oral histories, Indigenous tribes have long battled to control it.

Not much has changed today — except that the battleground has shifted to Victoria and Ottawa. Prime Minister Justin Trudeau’s government is set to make a decision about Pacific NorthWest LNG (PNW LNG)’s proposed $36-billion liquefied natural gas (LNG) project, which is majority-owned by the Malaysian energy company Petronas. That decision could come at any time, although deliberations are likely to stretch into the fall. If built, the project will link a pipeline that weaves through traditional First Nations territories with a conversion plant and shipping terminal on Lelu Island.

The stakes are high for B.C. Premier Christy Clark, who, already campaigning for re-election in May 2017, has promised big on jobs and tax revenue she says LNG development will generate. She claims PNW LNG has wide backing among B.C. First Nations, whose support is critical. At a press conference on June 3, Clark said, “It’s important that people in Vancouver and across the country see how much support there is for LNG in these communities.”

Last year, members of the Lax Kw’alaams First Nation, whose traditional territory includes Lelu Island, overwhelmingly rejected the proposed development on the island — and almost $1.2 billion in promised benefits. Clark claims a breakthrough with Lax Kw’alaams occurred earlier this spring. “The Lax Kw’alaams voted massively in favour of supporting LNG, with some conditions,” she stated at the June 3 press conference.

But locals in the tiny town of Lax Kw’alaams, many too afraid to put their view on the record, say no such vote occurred. The only vote on the proposed project that Discourse Media was able to substantiate is the vote that occurred at a series of meetings in May 2015, when a majority of community members voted against the benefit agreement proposed by PNW LNG.

The political pressure on Lax Kw’alaams since then has been immense. Locals describe a community deeply divided over its future, desperate not to miss out on the economic opportunity LNG could provide, but with a majority opposed to developing Lelu Island. “Everybody’s bickering and fighting. It is tearing the whole village apart,” says Corinne Dudoward, who has lived in Lax Kw’alaams all her life save for a few years off reserve to attend school.

With sparring between elected and traditional power brokers, death threats and alleged vandalism, a culture of fear has left community members feeling they haven’t been heard by provincial or federal politicians. Pledges by both governments to meaningfully consult with the Lax Kw’alaams people have been broken, according to many community members.

Flora Bank, an eelgrass habitat in the Skeena River estuary, is adjacent to Lelu Island. Research found that Flora Bank contains higher abundances of juvenile salmon than other locations in the estuary. Photo: Tavish Campbell

While Trudeau has a relationship to foster with Clark, he has also promised a renewed “nation-to-nation” relationship with Indigenous peoples based on “recognition of rights, respect, co-operation and partnership,” as stated in his mandate letters to ministers in November. He reiterated this when Minister of Indigenous and Northern Affairs Carolyn Bennett committed to the U.N. Declaration of the Rights of Indigenous Peoples (UNDRIP) in May.

Central to UNDRIP is Indigenous peoples’ right to “free, prior and informed consent” when it comes to proposals like PNW LNG. “Especially in cases of large-scale development or investment projects that may have a major, severe or adverse impact on Indigenous Peoples’ territories, consent is necessary,” wrote Indigenous legal scholar Dalee Sambo Dorough in Northern Public Affairs. “The state must provide all relevant information well in advance of the decision making.”

“It means developing and maintaining a more balanced and respectful relationship,” says Senator Murray Sinclair, former chair of the Truth and Reconciliation Commission. “It’s more than simply saying, ‘We’re going to stop taking your land away from you unless it’s really important.’” He says projects like PNW LNG are an opportunity for Trudeau to demonstrate his commitment to reconciliation.

In May, just two days after Bennett drew a standing ovation at the U.N. for committing to UNDRIP, a group of First Nations people from the Skeena region also stood before the U.N.’s Permanent Forum on Indigenous Issues. “Right now, in our ancestral lands, everything the Trudeau government has pledged to get right with Canada’s Indigenous peoples is in danger of going very, very wrong,” said John Ridsdale, a Hereditary Chief of the Wet’suwet’en First Nation. “It is 2016, and Petronas is the wrong project in the wrong place at the wrong time.”

The one thing everyone seems to agree on? That, had the consultation process been handled differently, free, prior and informed consent could have been achieved, PNW LNG could have been a success story for the Lax Kw’alaams, Petronas, Clark and Trudeau — and Lelu Island could have been protected for the use of future generations of Lax Kw’alaams people. Instead, it descended into one of the most polarized and contentious resource development battles that Canada has witnessed in years.

“Energy projects can proceed in a way that does achieve the purposes of reconciliation,” says Sinclair, “but not the way that we’re currently doing them.”

The Battle for Lelu Island Lands in Ottawa

PNW LNG has become one of the most contentious resource development battles that Canada has witnessed in years, and the battlefront has shifted to Ottawa.

Earlier this year, Premier Clark, four cabinet ministers and a delegation of over 80 people including industry representatives and First Nations travelled to Ottawa for what was dubbed a “trade mission.” PNW LNG has registered seven new lobbyists since the Liberals’ November election. First Nations groups opposing the development have also made multiple trips to Ottawa and the U.N., supported in part by conservation groups.

In addition to their conflicting demands, Trudeau’s government must weigh climate commitments made at the Paris Climate Conference at the end of 2015. The Canadian Environmental Assessment Agency has concluded that PNW LNG is “likely to cause significant adverse environmental effects … as a result of greenhouse gas emissions.” In fact, in late May, nearly 100 scientists said in a group letter to Minister of Environment and Climate Change Catherine McKenna that PNW LNG “would add between 18.5 per cent and 22.5 per cent to [B.C.’s] total GHG emissions,” making it “virtually impossible for B.C. to meet its GHG emission reduction targets.”

Divide and Conquer: The Threatened Community at the Heart of the PNW #LNG Project https://t.co/yLdU5i06F9 @CFNGBI pic.twitter.com/TyITpjqwv7

— DeSmog Canada (@DeSmogCanada) July 7, 2016

Not Prior, Not Informed — Not Free

It’s unclear whether First Nations were consulted before key decisions were made concerning PNW LNG. Shaun Stevenson, Prince Rupert Port Authority (PRPA)’s vice president of trade development, says the PRPA acknowledges that the port exists on traditional territory and expects developers to engage with First Nations as “early as possible.” A 2014 report by PNW LNG suggests initial contact with Lax Kw’alaams occurred in December 2012. But at least six months prior, Petronas had already earmarked Lelu Island for its plant and signed a feasibility agreement with the PRPA.

Community members in Lax Kw’alaams were open to development that would bring economic opportunity to the region, but they were concerned about how developing Lelu Island would impact salmon. Three years after being initially contacted, plans to locate the LNG plant on Lelu Island seemed set in stone, even though band members had received little response to their concerns about environmental impacts. And so, in spring 2015, some of them occupied the island in protest.

Ken Lawson and his wife, Patty Dudoward, are on the frontline of this occupation. A trucker and a fisherman by trade, Lawson never imagined he and Dudoward would spend the better part of a year shuffling between their home in Prince Rupert and the camp on Lelu Island, organizing food and fuel and assisting other activists at the occupation. As a house leader in the Gitwilgyoots tribe, one of the Nine Allied Tribes of Lax Kw’alaams, Lawson is often called upon by his hereditary chief to speak for the community.

Lawson isn’t against resource development in the region. His opposition hinges on the project’s impact on salmon — a staple for First Nations, tourism and the fishing industry. The Skeena River watershed is “one of the largest salmon watersheds in the world, second only to the Fraser River in its capacity to produce sockeye salmon,” according to theCanadian Environmental Assessment Agency (CEAA).

In April 2015, PNW LNG presented Lax Kw’alaams with a benefits proposal totalling nearly $1.2 billion in payments and land transfers that would be delivered over 40 years. The mayor of Lax Kw’alaams at the time was Garry Reece. Wanting to better understand the impacts on salmon and dissatisfied by information provided by PNW LNG, Reece’s band council commissioned consultant and geologist Patrick McLaren and Simon Fraser University biologist Jonathan Moore. Their research found that Lelu Island’s proximity to Flora Bank, a sandbar where juvenile salmon spend time transitioning between the river and the ocean, meant that development on the island posed significant threats to the salmon run.

The CEAA’s draft report to the federal government ran counter to McLaren’s and Moore’s findings, arguing that “taking into consideration mitigation measures … the Project is not likely to cause significant adverse environmental effects on marine fish and fish habitat.” Experts have called into question the CEAA’s findings. On March 11, a group of 134 scientists submitted a letter calling on Minister of Environment and Climate Change Catherine McKenna to reject the CEAA’s draft report; they said the government report is “scientifically flawed and represents an insufficient base for decision-making.”

In May 2015, Lax Kw’alaams-commissioned scientists and PNW LNG representatives presented their contrasting views at a series of public meetings called by Mayor Reece to consider PNW LNG’s benefits proposal. The meetings occurred in Lax Kw’alaams, Prince Rupert and Vancouver (the vast majority of band members live outside of Lax Kw’alaams).

In all three locations, large majorities of attendees rejected the deal. Two days after the final vote in Vancouver, the band council released a statement: the band would not support LNG on Lelu Island, but was open to collaborating to find an alternative plan. “Lax Kw’alaams is open to business, to development, and to LNG (including PNW). It is not open to development proximate to Flora Bank,” the statement reads.

Those occupying Lelu Island felt bolstered by the vote, confident that they represented the view of their community. “What it’s all about for Christy Clark is the jobs, and I get that. There aren’t a whole lot of jobs around,” says Ken Lawson from his vantage point on Lelu Island. “They just simply can’t put it on Flora Bank, Lelu Island. Put it somewhere else.”

“If they had asked where to put this in the first place, [the community’s] answer would probably be different,” says Lawson. “There would have been proper consultation — which there wasn’t.”

PNW LNG didn’t take up Lax Kw’alaams on its offer to find another location. But that didn’t mean the deal was off.

Grant Wesley, son of Malcolm Sampson, says he and his family are leaving Lax Kw’alaams because they don’t know who they can trust anymore. They’ll decide where to go once his girlfriend knows where she’ll be attending school to become a teacher. Wesley’s father says he’s been targeted for his anti-LNG views. Photo: Ash Kelly

The Premier Doubles Down

Premier Clark’s confidence in the venture was not lessened by Lax Kw’alaams’ rejection, according to reports by APTN and CBC. She reportedly said it was “only a matter of time” until a deal was reached with Lax Kw’alaams and the rejection was nothing more than “a bump in the road.”

At the Western Premiers’ Conference in May 2016, Discourse Media asked Clark what responsibility her government has to Lax Kw’alaams. She responded: “Do we want to create jobs for First Nations people and others in the country or do we want to have no change at all?”

Her comments echoed the message the B.C. government has been sending for months: it’s either the Petronas plant on Lelu Island or no economic progress at all. That kind of ultimatum has left people living in the region fearful of missing out on a limited-time offer, yet at the same time feeling that their concerns about the project’s location have been ignored.

Four of the five First Nations that the CEAA and the B.C. Environmental Assessment Office required PNW LNG to consult with — Metlakatla, Kitselas, Kitsumkalum and Gitxaala — have signed either impact benefit agreements (securing payouts for their communities along with environmental commitments from PNW LNG) or term sheets, which are often a precursor to impact benefit agreements.

With Lax Kw’alaams emerging as the sole holdout among those five First Nations (some upriver tribes that harvest Skeena salmon, including the Wet’suwet’en and Gitanyow, are also opposed), Lawson and Dudoward found themselves under increasing pressure from locals who felt they and their fellow occupiers were standing in the way of jobs and prosperity. “It feels like Ken’s and [my] heads are on the chopping block,” Dudoward says. They also acknowledge a lack of visible public support for their position, which they find understandable, but frustrating. “People are afraid of what could happen to them if they helped us out,” said Lawson. “They have to protect themselves and their jobs. I don’t hold that against anybody.”

Lawson himself is paying a toll for standing up. “I’ve logged all my life and I’ve run trucks for the last 12 years,” says Lawson. “The business has suffered… big time.”

In a smoke-filled teepee on Lelu Island, where the occupiers often debrief, Lawson talks about the recent breakdown of one of the trucks in his commercial fleet. Under the hood, he found a hole in a component behind the engine, one he believes was an act of sabotage. After inspecting the damaged part, his insurance company agreed it didn’t appear to be a wear hole. An investigation is underway.

Malcolm Sampson, a Lax Kw’alaams fisherman for more than 40 years and an outspoken activist against PNW LNG, also became a target for those in the community who disagreed with him. He recalls one phone call that made this particularly clear.

“You see that big hotel sitting there?” he asks, pointing to a modest, weathered building he owns. “I was threatened they were gonna burn it down. A man threatened to come up to my house and he was gonna shoot me and all my children,” he says. “My heart fell to my knees; I almost cried.”

Police in Prince Rupert say they have seen an increase in calls resulting from the controversial nature of these large-scale LNG projects. Sgt. Jagdev Uppal of the Prince Rupert RCMP adds: “This has included marine-based offences such as dangerous operation of motor vessels and uttering threats (complaints).”

James Anaya, U.N. Special Rapporteur on the rights of Indigenous peoples, could have been describing the situation playing out in Lax Kw’alaams when he criticized Canada’s relationship with Indigenous people in a 2014 report. When consultation does not take place in a consistent and timely manner, he wrote, the result is “an atmosphere of contentiousness and mistrust that is conducive neither to beneficial economic development nor social peace.”

Murray Smith, a house leader from the Gitwilgyoots Tribe, believes PNW LNG proponents are stoking divisions in his community by taking advantage of internal governance challenges. “They look for the weak link, people that are hungry for money,” he says. “They see that they’re poor and say, ‘Sign your name here.’”

A Sudden Flip-flop

Despite this mounting pressure, elected and hereditary leaders remained relatively united in their opposition to LNG development on Lelu Island — until a new mayor and council were elected in November 2015.

At first, the newly elected leaders maintained the community’s position. Mayor John Helin even submitted a letter to the CEAA reiterating the band’s rejection of the benefit deal on March 7, 2016.

But eight days later, in a move that hereditary leaders call a betrayal, Helin submitted a second letter to the CEAA that contradicted his earlier letter and offered conditional support for a project. The letter was dated March 15, when several elected councillors were away on an annual kelp-gathering trip on Digby Island.

Community members in Lax Kw’alaams were shocked. According to Smith, “the last time we had a band meeting was in a previous administration,” before Helin’s November election. Many Lax Kw’alaams community members corroborated this.

The band council is not required under lawto make financial or governance documentation available to the public. But, according to former mayor Reece, a band member can request meeting minutes at the band council office. So on April 8, after a prolonged silence from the elected council, fisherman Malcolm Sampson went to the band office and requested any relevant minutes from meetings concerning the letter.

Instead of providing the requested documentation, according to Sampson, the band council shut down the office and an impromptu protest ensued that resulted in someone calling the RCMP. By the time police arrived, there was little action. Const. Monte Webb describes the protest as “three cops and thirty people standing around just talking.”

Mayor Helin declined to comment in response to multiple interview requests made by phone, email and text message. When approached by Discourse Media reporters in person, he held his hand up and said “no.”

Discourse Media also reached out to each band councillor with publicly listed contact information. Only councillor Stan Dennis responded. Dennis says he is not at liberty to provide details on how the council operates, but stated for the record: “I am still standing against this development on Lelu.”

Political Talking Points

Helin’s contentious letter became a speaking point for Premier Clark. At the Western Premiers’ Conference in early May, she said Lax Kw’alaams leadership “voted overwhelmingly in favour of moving forward into the next stage of this agreement on LNG.”

In multiple interview requests, Discourse Media asked Clark to elaborate. In an emailed response, the premier’s office stated, “First Nation officials carried out their own internal engagement processes prior to their vote and letter of support to the federal government.”

Then, in a follow-up phone call, a spokesperson for the premier who spoke on background explained that Clark may have misspoken when she referred to a “leadership” vote and that it was in fact a public meeting where the community voted 244 to three in favour of developing Lelu Island.

In written statements, the province has maintained that “Lax Kw’alaams First Nation conducted its own community engagement process and vote, prior to its letter being submitted,” but how many people voted and whether they were leadership or band members remain unclear. At the June 3 press conference, Clark said, “There will always be some people who disagree and that’s the nature of a democratic society. But in the Lax Kw’alaams, when they took that vote amongst the chiefs and the vast majority — I think over 150 people voted in favour of it and three voted against — at some point you have to say the people have spoken.”

But have they? Neither the premier’s office nor the band council provided any documentation of either a band council or community vote in response to multiple requests. Discourse Media has been unable to identify a single community member who attended or was aware of a public meeting that was supposedly attended by between 150 and 247 people.

PNW LNG declined multiple interview requests and provided a written statement: “PNW LNG is working collaboratively and constructively with local First Nations. To date, PNW LNG has received conditional support from all local First Nations within the project area. We do not comment on band governance issues.”

Malcolm Sampson hasn’t shied away from pressing council to explain what happened in those eight days between letters to the CEAA; he is circulating a petition demanding answers and organizes occasional protests outside the band office. But he’s not sure how long he can keep it up; he no longer feels safe in the community.

“I’m going to try and sell what I can here and then maybe move on. We don’t feel liked here,” says Sampson. “It’s sad. It hurts to leave because I’ve lived here all my life.”

Image: Ash Kelly

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“First Nations save us again.”

That was the message of a text I received from a friend after they heard of the Federal Court of Appeal’s decision to overturn the Harper government’s approval of the Enbridge Northern Gateway pipeline.

And it’s true: First Nations have borne the social burden once again of calling out undemocratic, law-breaking government actions that threaten the climate, the environment and human health.

Alongside the many First Nations that brought a legal challenge against the Northern Gateway pipeline approval were several environmental organizations that brought attention to the ways the project threatened endangered species and marine life.

But it was the former government’s tragic lack of First Nations consultation that caught the court’s attention.

In their ruling, two of the three judges said the government failed to meet even a basic standard for First Nations consultation. In fact, the government all but closed their eyes and stopped up their ears to some of the most basic aspects of First Nations existence.

From the ruling: “The inadequacies — more than just a handful and more than mere imperfections — left entire subjects of central interest to the affected First Nations, sometimes subjects affecting their subsistence and well-being, entirely ignored.”

“Many impacts of the project — some identified in the Report of the Joint Review Panel, some not — were left undisclosed, undiscussed and unconsidered.”

“Ignored.” “Undiscussed and unconsidered.”

It’s extraordinary that some of the most disenfranchised participants in this system were left to fight a major energy infrastructure project — and the undemocratic process that granted its approval — in the courts.

In fact, the mere existence of First Nations people in British Columbia is extraordinary.

That these unique traditional cultures and ways of life have survived the onslaught of Western, industrial, imperial and racist governments and policies in this province is extraordinary.

That they have done so mostly outside a treaty framework, and upon almost entirely unceeded territories, is extraordinary.

That these communities, these individuals, have preserved a cherished, land-based way of life that seems in part the antidote to the poisonous, destructive and extractive impulse of modernity — all while fighting precedent-setting court cases to maintain their right to that life — is extraordinary.

And let’s not forget: the very way First Nations rights and title is enshrined within our constitution is extraordinary.

And the fact that today, in the face of a government that has systematically neglected, silenced and oppressed them, these First Nations have secured a legal victory that will likely benefit us all, is extraordinary.

Legal commentators are already pointing to how this ruling exposes the fundamental inadequacy of our pipeline review process. That is the very same process currently in place for the Kinder Morgan Trans Mountain pipeline — another project local First Nations have been forced to fight in court.

The same failures and inadequacies of consultation have also plague this province’s approval of fracking operations, industrial water use, species at risk management, environmental assessments and the oversight of a nascent LNG export empire.

Treaty 8 First Nations in the Peace Region have also been forced to take the province to court over violations of treaty rights in the face of the destructive Site C dam. There are more violations occurring there than local First Nations have the time or capacity to legally challenge.

Legal battles like the one won for B.C. First Nations today are costly. They drain First Nations of the energies and resources that would otherwise be invested in their communities.

The decision for the Enbridge Northern Gateway pipeline now rests in the hands of the federal government and Prime Minister Trudeau, who recently signed Canada onto the UN Declaration on the Rights of Indigenous Peoples.

Let’s hope, moving forward, First Nations consultation as well as all constitutional and treaty rights, will be made part of this government’s decision-making process rather than a shameful afterthought.

Heaven knows it will benefit us all.

Image: Pipeline opponents rally against the Enbridge Northern Gateway pipeline in Vancouver. Photo: Zack Embree

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The province of British Columbia and Enbridge Northern Gateway are being ordered to pay $230,000 in court costs to both the Gitga’at First Nation and Coastal First Nations after a January 2016 ruling found both parties failed to fulfill a legal obligation to consult with First Nations on the Northern Gateway pipeline.

The B.C. Supreme Court found the province contravened consultation rules in 2010 when it signed an equivalency agreement that granted environmental decision-making authority for the pipeline to the federal government. 

The January ruling was seen as a major vindication for coastal First Nations who felt the province failed to live up to its continual promise to work with and consult with First Nations communities along the pipeline route.

The awarded court costs have added to that feeling.

“We are very pleased with the decision,” Coastal First Nations Chair Kelly Russ said. “The decision is a victory for the tireless work of our leaders and our Gitga’at community in the fight to protect the waters, lands and resources in the Great Bear Rainforest.”

Madam Justice Koenigsberg, who delivered the ruling, said court costs were awarded to the groups after finding the case met a public interest test. Koenigsberg said the subject matter of the case was “truly exceptional” and was of “significant and widespread societal impact.”

“This ruling is a win for the Gitga’at Nation and all First Nations who are directly impacted by resource extraction and transportation proposals,” Arnold Clifton, Chief Councillor of the Gitga’at First Nation said.

“It’s also a message to project proponents that consultation must be between the Crown and a First Nation and that duty to consult and protect cannot be transferred to third party interest groups.”

Last month the province ordered Enbridge to seek a provincial environmental assessment certificate. The B.C. Environmental Assessment Office said it will use an environmental assessment conducted by the National Energy Board in its provincial environmental review, but that consultation with First Nations must begin from square one.

Enbridge received conditional approval for the pipeline project in 2014. That approval will expire if the company does not begin construction by December 31, 2016.

Last week Enbridge asked the National Energy Board for a three-year extension to that permit.

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The B.C. Environmental Appeal Board has ruled the province failed to properly consult the Fort Nelson First Nations and employ adequate scientific modelling when it approved a long-term water withdrawal licence for Nexen Inc., a company with fracked gas operations in the Horn River Basin.

The board ordered the cancellation of the water licence, effectively immediately. The permit granted Nexen permission to withdraw up to 2.5 million cubic metres of water annually from North Tsea Lake, located within traditional Fort Nelson First Nation territory, until 2017.

The First Nation considers the ruling a significant victory over both Nexen and the B.C. government.

“Granting this licence was a major mistake by the province,” Fort Nelson First Nation Chief Liz Logan said, adding “our members have always used the Tsea Lake area in our territory to hunt, trap, and live on the land."

Logan said Nexen withdrew water from Tsea Lake at ecologically damaging times.

“The company pumped water out of the lake, even during drought conditions,” she said. “There were major impacts on the lake, fish, beavers and surrounding environment.”

“Water is a huge concern for us, and for all British Columbians. By approving this licence, the province demonstrated it is not protecting the public interest in water.”

The appeals board found the province did not base its decision to grant the water permit in 2012 on sound science. Certain aspects of the permit were based on “a general and untested theory,” the board stated in its decision, and the percentage of lake water Nexen was allowed to use was “not supported by either scientific theory, appropriate and reliable stream flow modeling, or adequate field data.”

The ruling rejected the province’s assertion the water withdrawal would have no significant environmental impacts.

The board also found the province failed to operate in good faith with the Fort Nelson First Nation, which has a constitutionally protected right to hunt, trap, fish and continue traditional ways of life on its Treaty 8 territory.

The province’s consultation process with the First Nation was “seriously flawed,” according to the board and failed to adequately consider the adverse effects of the water withdrawal licence on the nation.

“We want to work with the province and industry on sustainable development in our territory, but we are being ignored,” Chief Logan said. “We have in the past, and are willing to do so moving forward, as long as our treaty rights are respected and the public interest in environmentally sustainable development is upheld.”

The ruling will set a new precedent for water permits in B.C. and could potentially impact fracking operations underpinning the province’s push for a massive increase in liquefied natural gas (LNG) exports.

“This decision sends a clear message to the B.C. government and to the fracking industry that the LNG dream will not happen at the expense of our lakes, rivers, and treaty rights,” Logan said.

Image: Province of B.C.

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Internal documents obtained by B.C.'s Haisla Nation show the federal government had concerns about the consultation approach proposed for Enbridge’s Northern Gateway pipeline since at least 2009.

The documents, requested by the Haisla Nation nearly four years ago, were released through Access to Information legislation recently and show the federal government was warned it wasn’t fulfilling its duty to consult Aboriginal peoples as required under Section 35 of the Canadian Constitution.

An Environment Canada e-mail included in the documents contained a list of concerns regarding the consultation process, stating, “it is not clear that [the process] would meet the honour of the Crown duty.”

The e-mail also acknowledged “First Nations were not involved in the design of the consultation process” and that there was a “lack of clarity” concerning First Nations’ rights and title.

Haisla Nation Chief Councillor Ellis Ross said he received the trove of documents with “mixed emotions.”

“We’re very satisfied to know the staff of Environment Canada agreed with us in terms of the inadequate process in place to address rights and title,” Ross said. “But it’s disappointing this information is in our hands now when we can’t do anything with it legally or politically.”

“But it does confirm what we’ve been saying all along about the process when it comes to rights and title is very inadequate. It doesn’t even follow case law.” 

Under Section 35 of the Canadian Constitution Act, the government is obligated to "recognize and affirm" First Nations rights, including the right to traditional land and cultural practices. The Crown has a 'duty to consult' First Nations on any projects planned for traditional territory or projects that may affect aboriginal rights. 

The National Energy Board conditionally approved the controversial 1,178 kilometre Northern Gateway pipeline in June 2013 despite broad opposition from First Nations and other British Columbians.

“Now we can see that Canada’s own environment ministry agreed with us,” Chief Fred Sam of Nak’azdli said.

“For years Nak’azdli and the Yinka Dene Alliance have said to Canada that its approach to consultation for the Enbridge proposal is seriously flawed,” he said.

Eight First Nations including the Haisla, the Nak’azdli and Gitxaala Nations have launched a legal challenge against the pipeline on the basis of inadequate consultation.

Chris Tollefson, lawyer with the University of Victoria Environmental Law Centre, said the lack of appropriate consultation was apparent from the moment the Joint Review Panel (JRP) hearings for the Northern Gateway pipeline began.

“At the hearings I could see the frustration of the First Nations that were participating in terms of the inability of the process to deal with their constitutional rights and their issues,” Tollefson told DeSmog Canada.

“The JRP in my view was never clear on what its role was in relation to consultation and that uncertainty, I think, will ensure that this issue is before the courts for some time. Because in the end that consultation, from my perspective, was never duly discharged.”

When it comes to Section 35 of the Constitution, “the first principle is that First Nations have a right to be consulted on projects that would affect their rights or their title; in short, their livelihood and life and right to occupy traditional territory,” he said.

Tollefson said the federal Court of Appeal will hear the case of the eight First Nations as well as two environmental organizations — including BC Nature which he represents — against the Northern Gateway pipeline's approval in Vancouver this October.

Ellis Ross. Photo: Philip Chin

An additional Transport Canada e-mail released to the Haisla, dated August 31, 2009, also expressed doubt in the adequacy of the government’s approach saying “the consultation plan as written does not appear to be flexible enough to account for changing circumstances and incoming information.”

Both the Environment Canada and Transport Canada e-mails were sent to the Canadian Environmental Assessment Agency, which was seeking input from government agencies on Crown consultation.

Despite these doubts the federal government “charged ahead” with its consultation process, Chief Sam said.

“Now, many First Nations have been forced to go to court to challenge Canada’s Enbridge decision,” he said.

Gitxaala Nation Chief Clarence Innis said he’s “shocked” that, despite the apparent level of uncertainty about consultation, “Canada pressed ahead with this dishonourable treatment of our Nation and other First Nations.”

“This confirms the justice of our principled opposition to the shipping of bitumen through our territory and British Columbia’s Northwest Coast,” Innis said.

For Haisla legal counsel Ellis Ross, the documents cast a shadow on the traditionally fraught relationship between First Nations and the federal government.

“We’re trying to follow the rules, and case law principles — the Haisla isn’t blocking roads or anything — we’re trying to follow the courts,” he said.

“But with Canada, it’s like the rules are there to be bent or broken.”

Environment Canada Sep 1 2009 Email Re Consultation Approach

Transport Canada Aug 31 2009 Email Re Consultation Approach

Image Credit: Ellis Ross by Philip Chin

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The Tsleil-Waututh nation announced it will launch a legal challenge against the Canadian government and the National Energy Board (NEB) Friday over legal compliance and consultation with First Nations in relation to the proposed Kinder Morgan Trans Mountain pipeline expansion.

At an outdoor press conference on Tsleil-Waututh territory overlooking the Burrard Inlet and Kinder Morgan facilities, Chief Maureen Thomas said her nation has been ignored by the government throughout the Trans Mountain pipeline review process.

“Today with a heavy heart we want to announce we are going to….I don’t want to use those words…but we are going to fight,” she said.

Merle Alexander, aboriginal resource lawyer with Gowlings LLP said there are a number of “procedural errors” affecting the pipeline assessment process. “If these decisions aren’t corrected now they’ll affect the entire review process,” he said.

The Tsleil-Waututh nation will commence a legal action in the federal court of appeal, challenging a number of decisions of the NEB that include failed consultation, improper project assessment and a fundamental mischaracterization of the Trans Mountain project which involves an expanded pipeline, a terminal and increased storage facilities.

“The case is really one about legal compliance,” Alexander said. “Tsleil-Waututh is forcing legal compliance with Canadian legal law as well as enforcing their own legal government.”

Rueben George of the Sacred Trust Initiative and project manager of public engagement for the Tsleil-Waututh says the legal challenge is in the interest of all Canadians.

“The actions we take are to benefit everybody,” he said, “because Canada is making the wrong decision in supporting Kinder Morgan.”

“Since time immemorial we have been stewards of our land and we have a track record of taking care of our people.”

“I’ve had the land and waters feed my spirit. Everything we get out of the water is goodness."

“What that is over there is Kinder Morgan,” he said, gesturing over his shoulder to Kinder Morgan’s storage facilities. “What they put in the water isn’t goodness.”

In 2007 the Trans Mountain pipeline ruptured in a Burnaby neighbourhood after a road crew’s excavator accidentally hit the line. Roughly 250,000 litres of oil spilled into the community with 70,000 litres entering the Burrard Inlet.

The proposed pipeline expansion would increase the line’s capacity from 300,000 to 750,000 barrels of oil per day. The increase in capacity could quadruple the number of oil tankers moving through the inlet, from five to more than 20 each month.

Chief Thomas said the case is ultimately about taking a stand.

“We have to take a stand, stand up for what we believe is truly right. What we really believe is right for us is protecting land and waters to the best of our ability. We have to move forward in a way that we really do become aware of what is going on and not take things for granted. You have to be the one to stand up,” she said.

Thomas recounted the decline of local plants and species in the region, saying local people can no longer harvest shellfish from the once-fertile and clean waters.

“When you look at the future you have to make sure you have water, food for your family. Those are necessities. This land, area has been continually declining in providing our people food. Our people once survived from the food of this land. The animals, the plants, they are declining every day. We have to find a way to stop that decline to the best of our ability.”

The Tsleil-Waututh have worked for years to rehabilitate and lessen their impact on the local area. They’ve introduced wind power, salmon rehabilitation projects and have reintroduced elk to the hillside.

“We’re not people that fight,” Thomas said, “but we want to protect and respect these lands.”

Image Credit: @kingcornevj via Twitter

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B.C. Environment Minister Mary Polak has reversed and apologized for excluding First Nations from two amendments that would eliminate the province’s mandatory environmental assessment of gas developments and ski resorts.

As DeSmog Canada recently reported, the Orders in Council were passed without public consultation and would exclude major natural gas processing facilities and resorts from undergoing a standard environmental review and public consultation process.

“The rescindment is a direct result of backlash from the Fort Nelson First Nation (FNFN)," Anna Johnston, staff counsel with West Coast Environmental Law Association, told DeSmog Canada. "Yesterday, at an LNG Summit hosted by the FNFN, they ‘drummed out’ government representatives due to the provincial government’s failure to consult with them on the Orders.”

B.C. officials were escorted from the forum on liquefied natural gas (LNG) after news of the eliminated environment assessments broke. At the forum, called “Striking a Balance,” Chief Sharleen Gale of the FNFN asked B.C. government officials to leave the room, saying “what I learned from my elders is you treat people kind. You treat people with respect…even when they’re stabbing you in the back.”

“So I respectfully ask government to please remove yourself from the room. We’re going to ask industry to stay.”

A video of the expulsion can be seen below.

The provincial government has been undergoing “serious environmental deregulation,” said Johnston, pointing to Bill 4, the Park Amendment Act, as further evidence.

“Their rescinding the Orders indicates that the Minister of Environment has heard the message loud and clear that the government cannot continue to sneak through changes to environmental laws that will significantly impact British Columbians without first consulting them,” Johnston told DeSmog Canada.

“Public participation is essential to responsible environmental decision-making, including the process of making the laws that protect our environment and our communities. Hopefully, the government has learned that next time, it must properly consult stakeholders, environmental groups and First Nations before attempting any further changes to our environmental safety net.”  

Yesterday Chief Terry Teegee of the Carrier Sekani Tribal Council told West Coast Native News First Nations were “blindsided” by the changes. “There was no consultation as far as changing that policy.”

An executive with the First Nations Summit, Cheryl Casmier, said the revisions were “another unacceptable example of government once again attempting to water down and minimize its consultation and accommodation obligations with our communities.”

First Nations expressed concern decisions that would impact land use were being made without proper consultation.

Chief Stewart Phillip of the Union of B.C. Indian Chiefs told West Coast Native News, “in a stunningly stupid move, the province has effectively declared war on all B.C. First Nations and jeopardized all LNG discussions throughout the entire province of B.C.”

Minister Polak made this statement in a B.C. government press release:

“I would like to acknowledge First Nations concerns about amendments to the Reviewable Projects Regulation under the Environmental Assessment Act. Our government apologizes for failing to discuss the amendment with First Nations prior to its approval.

Our government is committed to a strong, respectful and productive relationship with First Nations. That is why we will rescind the amendment that would have removed the requirement for an environmental assessment for sweet gas facilities and destination resorts, until we have undertaken discussions with First Nations. The Canadian Association of Petroleum Producers (CAPP) has been made aware of this decision, and respects the need for our government to have further discussions with First Nations.

Our government sees a significant value in continuing to develop a Government to Government relationship with all First Nations. We remain actively engaged with First Nations in northeastern British Columbia, including shared decision making that respects the environment, First Nation values, and Treaty 8 and its associated rights.”

Image Credit: Jeremy S. Williams, Wilderness Committee

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