Canadian law profs' statement on Tsleil-Waututh Nation rejection of Kinder Morgan pipeline
Editor's note: Several Canadian law professors issued this joint statement today (May 26):
We write as professors of law at several Canadian law schools to recognize and commemorate the May 26, 2015 release of Tsleil-Waututh Nation’s Assessment of the Kinder Morgan Trans Mountain Pipeline and Tanker Expansion (“TMEX”) Proposal (the “Assessment”).
Tsleil-Waututh carried out its Assessment pursuant to its Stewardship Policy, which is an expression of the nation’s inherent jurisdiction and law. The Assessment involved a review of the potential impacts of the TMEX proposal – not only impacts on the biophysical environment, but also on Tsleil-Waututh’s interconnected cultural, spiritual, legal and governance rights and responsibilities. Legal principles that guided the assessment were drawn from Tsleil-Waututh traditional narratives and other Coast Salish traditional and contemporary sources.
The inherent jurisdiction and laws which Tsleil-Waututh relied on in completing its Assessment exist independently of, and pre-date the assertion of sovereignty by Canada. Section 35(1) of the Canadian Constitution recognizes and affirms such existing Aboriginal rights, including Aboriginal title and governance rights.
In the landmark Supreme Court of Canada decision Tsilhqot’in Nation v. British Columbia, Canada’s highest court affirmed that Aboriginal title encompasses a right to “proactively use and manage the land” including making land use decisions. The Tsleil-Waututh Assessment is a pioneering example of a First Nation acting on this authority to review and decide whether a project should proceed in its territory.
Tsleil-Waututh’s decision to reject the Kinder Morgan pipeline and tanker project on the basis of an in-depth review conducted pursuant to its own laws and policies is legally significant for a number of reasons:
- Although Tsleil-Waututh’s inherent title to its territory has not yet been recognized by the Canadian courts, in Tsilhqot’in the Supreme Court of Canada notes that: “if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing.”
- The Assessment lays out the profound impacts of the TMEX project on Tsleil-Waututh title and rights, thus setting the stage for litigation that could delay or derail the TMEX.
- Tsleil-Waututh Nation has stated that it will “take all lawful means necessary to ensure that Tsleil-Waututh’s decision in relation to the TMEX is recognized, respected and enforced.”
- Thus, Tsleil-Waututh’s Assessment and decision create uncertainty and legal risk for the Kinder Morgan TMEX proposal both as a matter of Coast Salish and of Canadian constitutional law.
We close by echoing the words of the Supreme Court of Canada: “Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.”
Gordon Christie, Director, Indigenous Legal Studies Program, University of British Columbia
Sakej Youngblood Henderson, Research Director, Native Law Centre of Canada, University of Saskatchewan
Andrée Boisselle, Assistant Professor, Osgoode Hall Law School
Nicole Schabus, Janna Promislow and Charis Kamphuis, Faculty of Law, Thompson Rivers University
May 26, 2015 at 3:12pm
This province must support all First Nations people in their fight to protect all of BC.
If it is left up to the Liberal government, this province will be exploited and damaged beyond repair. It is possible to extract resources in such a way that will minimize damage, but large corporations can not be trusted because their bottom line will always trump ecological concerns.
May 26, 2015 at 4:03pm
Excellent news, Tsleil-Waututh Nation acts to protect the environment & the SCOC's ruling which recognized their inherent right to withold project "Consent".
This FN declaration is nothing less than Notice-to-all-levels-of-Canadian-government that FN's will ensure integrity of SCOC ruling is enforced by them.
All of it necessary because the clark/harper governments have swapped the trust of good governance for the rule of crony capitalism.
May 26, 2015 at 11:08pm
Once again First Nations are front and centre protecting the environment. Kudos to them all. Our province and Canada itself owe them a debt of gratitude.........Thank-you...First Nations....Namaste
David E.H. Smith
May 26, 2015 at 11:17pm
LNG, OIL, Natural Resources & NATIVE 'ECONOMIC' DEVELOPMENT;
REOPENING TREATIES, both 'DOMESTIC' (First Nations) & 'FOREIGN' (Global Corporate);
Corp. Canada Continues to Create Unrealistic Expectations for Treaty Signatories via Deprivation of Due Diligence Info. Re; 2X+ Direct Cash Dividends.
Eco. Dev. Contracts VOIDED at Shareholders’ Expense for Trampling over ‘Consultation’ with the Most Vulnerable Band Members (95% - 99% of the Band Members) & Desecrating The W.A.D. Accord & its Compensation?
Corporate Canada, Bay St., Parliament Insist upon Deluding; the most vulnerable Canadians, both Native & non Native (95% - 99% of all Canadians) and Global Corporate Assocs. 'Ignoramus at Ignorambimus'?
But, how much of the direct cash dividends are the most vulnerable band members obtaining from their share of 'their' economic development as per The W.A.D. Accord & its Compensation? Are the most vulnerables receiving a factor of two (2+) of the amount that can be obtained from all of the present sources of social assistance? Or, are the rights of the most vulnerable First Nations members (ie. 95% - 99% of the members of the communities) once again being traded for future considerations that only benefit the families of the 1% - 5% of the communities).
And, how anxious is corporate Canada to make 'arrangements' with Native leaders that …'guarantee' its global corporate associates that they will not be further encumbered by the development of Indigenous (human) rights & thus, be able to develop the natural resources that are continuing to be found in Canada by way of the flurry of superseding treaties with foreigners, such as; The TPP, et al?
And, what are some of the other areas of information that corporate Canada is continuing not to share...that are in the process of raising unrealistic expectations & destabilizing the geopolitical world while passing the costs on to the non shareholders?
The W.A.D. Accord (Less Comprehensive version),
FULL Article, see; davidehsmith.wordpress.com
May 27, 2015 at 12:13pm
Has anyone read the 90 page synthesis?
"The following may be downloaded from the Trans Mountain Assessment Report page:
Tsleil-Waututh Assessment of the TMEX and Appendices
Chief and Council decision regarding the TMEX
Statement from Canadian law professors regarding the Tsleil-Waututh Assessment"
May 27, 2015 at 12:15pm
@ Gordon Christie
It is nice you are taking this stand but could you perhaps speak up for the hard working people in the UBC law school facing cutbacks because managers overspent the budget on their own and professors' salaries and benefits? The profs get 100% coverage of their medical, the people who run the department get 80%; professors and managers always find money to reward themselves and cater events but at least one long serving HR employee is being let go for budgetary reasons. The wages involved aren't that much, the gravy train doesn't flow down to hourly employees, and the position could be saved if even a few professors took a stand for those in their own department.
May 27, 2015 at 6:14pm
Oh Canada ... Our home and NATIVE land
I would like to take this opportunity to thank our indigenous hosts for their continued patience and generosity-of-heart with the dominant society