Vancouver Sun – Vaughn Palmer

Chief Lee Spahan, of the Cold Water Indian band attends a news conference in Vancouver, Tuesday, Jan. 17, 2017. Representatives of First Nations addressed the legal action that they are taking against the Kinder Morgan pipeline.Chief Lee Spahan, of the Cold Water Indian band attends a news conference in Vancouver, Tuesday, Jan. 17, 2017. Representatives of First Nations addressed the legal action that they are taking against the Kinder Morgan pipeline

During the lengthy review of the proposed twinning of Kinder Morgan’s Trans Mountain pipeline through B.C., regulators identified some 130 aboriginal groups that could potentially be affected by the project.

Most were First Nations based in B.C. But there were a smaller number in Alberta — and a half dozen Metis groups in the two provinces were identified as well.

Following on guidelines laid down by the courts, the federal and provincial governments set about identifying potential impacts on each aboriginal group from pipeline construction, increased tanker traffic and oil spills on land or at sea.

Those were then examined by the degree to which the impacts would incur obligations to consult and accommodate a given aboriginal group or interest.

In all, 117 individual aboriginal groups were identified as being entitled to at least some measure of consultation, 15 in Alberta, the rest in B.C. Thus, the project was deemed to have at least some impact on fully half of B.C.’s 203 recognized First Nations.

For the provincial followup to the federal review process, ordered last year by the courts, 96 B.C. aboriginal groups were ticketed for consultations. Some 81 of them were entitled to deep consultations, meaning regulators were obliged to respond at length to their concerns and to try to accommodate their interests wherever possible.

First Nations were offered public funding to participate in national energy board hearings and more than 80 did so. Some 29 also made direct submissions under the provincial environmental assessment process.

All this is laid out in the 151-page report on aboriginal consultations and accommodation, compiled by the federal and provincial governments as part of the approval process on the pipeline project.

The report specifies how about two-thirds of the almost 200 conditions laid down by the federal and provincial governments were crafted to address aboriginal concerns in whole or in part.

For instance, No. 98 on the list of 157 conditions imposed by the federal government obliges Kinder Morgan to establish “at least two months prior to commencing construction a plan describing participation by aboriginal groups in monitoring activities during construction for the protection of traditional land and resource use for the pipelines, terminals and pump stations, and traditional marine resource use at the marine terminal.”

There follow another half dozen sub-conditions to ensure the affected aboriginal groups are fully involved in the monitoring and any remedies.

No. 11 of the 37 supplemental conditions added by the province obliges the company to develop a comprehensive program to reach out to aboriginal communities impacted by increased tanker traffic.

Among other provisions, it must “communicate regarding relevant marine-related initiatives, programs, and research that the (company) is directly or indirectly involved in to address the impacts of increased project-related tanker traffic in the Salish Sea (and) consult with aboriginal groups to identify potential activities and actions that the company may undertake to support safe aboriginal traditional marine use and to support ongoing education and planning related to spill preparedness and response, in consideration of the increased project-related tanker traffic. …”

And so on.

The report notes how the company itself has negotiated with aboriginal communities to establish benefit-sharing agreements by way of compensation for the impact on their interests and territories. The current tally is 41 separate agreements with B.C. First Nations and a combined value in excess of $300 million.

Still, for all the consultations, accommodations, conditions and agreements with First Nations, the more pressing news — as is so often the case with land and resource development in B.C. — is with the holdouts.

This week saw three First Nations announce their intentions to use any and all means to challenge the project approvals in the courts, owing to what they said was a failure on the part of senior governments to properly consult and to accommodate concerns about health and the environment.

Chief Lee Spahan of the Coldwater Indian band: “The existing Kinder Morgan pipeline was built through our reserve, and above our aquifer, at a time when it was illegal for us to vote or hire a lawyer. Due to its location the expansion poses even greater risk to our drinking water.

The Crown’s decision to put our drinking water at risk merely because Kinder Morgan does not want to consider another viable, but more costly, alternative route through our territory is profoundly troubling.”

Chief Maureen Thomas, Tsleil-Waututh Nation: “The federal government’s consultation process was disappointingly flawed. The economic information they relied on was outdated. The oil spill risks and health impacts were significantly understated.

“We have done our own independent assessment and made a decision based on Tsleil-Waututh law. We do not consent to the Kinder Morgan pipeline project in our territory.”

As for the many First Nations that have concluded agreements to support the project and share in its benefits, here’s Chief Ian Campbell of the Squamish First Nation: “That is their choice, their autonomy to make their decisions within their territories … We are responsible for decisions within our own homelands and waters.”

The merits of the individual legal challenges notwithstanding, it strikes me that there’s a larger issue here to be adjudicated by the courts.

When half of the First Nations in B.C. are impacted by an interprovincial resource development, does each one of them have a veto? With a project as extensive as this one, governments need to know when enough is enough.