A green light for Trans Mountain is no guarantee for the $7.5 billion expansion, says the author of a new report highlighting economic benefits that involved First Nations could lose over internecine litigation led by a minority of them.
University of Calgary Professor Emeritus Tom Flanagan told The Post Millennial that outstanding legal questions on First Nations’ rights could further mire the project in court if the Trudeau decides to proceed without consensus.
“I don’t think it’s as simple as making a cabinet decision on June the 18th, so stay tuned is all I can say,” said Flanagan of the Liberal government’s planned announcement on the embattled pipeline.
“We do have to address this legal problem which has created something like a veto for individual First Nations on corridor projects that involve dozens of First Nations. And that’s an unresolved problem in our jurisprudence.”
Flanagan’s ‘How First Nations Benefit from Pipeline Construction’ report notes First Nations communities on either side of the pipeline debate and the Alberta/B.C. border, score lower community well-being indexes: a measure of four indicators including education, labour activity, income and housing. Family mean-incomes are also lower.
Forty-three First Nations and other Indigenous groups currently back Trans Mountain, while only a dozen showed opposition in the Tsleil-Waututh Federal Court of Appeal challenge over insufficient consultation in the National Energy Board’s decision to twin the pipeline.
Before the Canadian government purchased the project from Kinder Morgan, the Houston-based energy giant boasted $400 million in ‘Mutual Benefit Agreements’ (MBAs) with the First Nations participants.
After the Tsliel-Waututh federal court undertaking began at the beginning of last year, the Liberal government announced it would buy the entire stake from Kinder Morgan for $4.5 billion last May.
On August 30, 2018, the federal court quashed NEB’s approval, the same day 99 percent of the Houston Texas firm’s shareholders voted to sell its Trans Mountain interests to Canada.
If cabinet decides to proceed with construction, shovels are a long time from hitting terra firma on construction unless the first scenario exists, according to Flanagan.
“Ideally it would be a negotiated agreement that opponent First Nations would say, ‘ok I concede the vast majority of our cousins want to do this. We won’t stop it, however we would like to be compensated for potential damage,’” he said. “So that would be the best solution and maybe it will happen, although given the history it doesn’t seem that likely.”
As for alternatives, Flanagan said government legislation could codify easements on First Nations land in instances of competing interests, but that would lead to a courtroom over Indigenous rights enshrined under Section 35 of the Constitution.
But a legal test of a First Nation’s purported veto authority is the more likely outcome he said, “because certainly there’s no shortage of statements from First Nations leaders saying (they) can stop the project.”
“So ultimately if the opponent First Nations are determined to carry this out until the end, we may be back in court. Not just concerning the adequacy of the consultation, but concerning the existence of veto power for individual First Nations which is the issue that hasn’t been clearly raised before.”
Flanagan’s report offers up TransCanada’s Coastal GasLink natural gas pipeline as a study in contrasts. Unlike Trans Mountain’s proposed 1,150-kilometre bitumen pipeline between Edmonton and Burnaby, B.C., Coastal GasLink will run about 670 kilometres from Dawson Creek to Kitimat, B.C.
To date, opposition to the project has been from a small group of hereditary chiefs within the Wet’suwet’en Nation, while the elected government of the same nation inked Impact Benefit Agreements with TransCanada along with 19 other Indigenous groups.
“The story, however, may not be over,” writes Flanagan in his report. “Because jurisdictional issues between the elected council and the hereditary chiefs are unresolved and hereditary chiefs remain opposed to the pipeline.”
While First Nations’ buy-in garnered the 20 groups nearly $40 million just for playing ball with TransCanada and another $1 billion in fixed tolls, contracting and jobs, Coastal Link is back in B.C. court today with opponents to litigate an extension of an injunction against related protests.