A new assessment released today by the Tsleil-Waututh Nation may have a significant legal impact on the proposed expansion of Kinder Morgan’s Trans Mountain pipeline.
The scathing assessment outlines the reasons behind the Tsleil-Waututh’s rejection of the pipeline, citing the cultural and environmental impacts that the project would have on the Burrard Inlet, which has been home to the 570-person nation since “time immemorial.”
“We always knew that the pipeline was wrong, now we have facts from studies that we were a part of that show it,” said Rueben George, who heads the Tsleil-Waututh Nation’s Sacred Trust—an initiative championed by the nation which is mandated with opposing Kinder Morgan’s pipeline project.
The assessment released today is made up of six expert reports, which among other things describe the likeliness of an oil spill and the environmental impact that it would have on the region.
According to the reports, a massive oil spill at the Burrard Inlet would result in the disruption of the food-chain throughout the region, as well as the fouling of up to 25 kilometres of shore line, and the death of an estimated 500,000 birds.
“The risk of an oil spill large or small is too significant of an impact on Burrard Inlet,” said John Konovsky, one of the scientists who contributed to the reports. “Those are things that are concrete now because of our work.”
An oil spill could also have a serious effect on the Tsleil-Waututh's culture, which is intrinsincally linked to the water. For the Tsleil-Waututh—whose name means "the Children of the Inlet"—it is an obligation to protect the sacred waters of the Burrard Inlet.
According to George, this is why the nation is rejecting Kinder Morgan's project.
"It goes against the laws of our culture and our spirituality; it goes against our laws of our lands and our waters, and that's why we are saying no," George said.
The full assessment put together by the Tsleil-Waututh Nation will be turned in to the National Energy Board as evidence of the nation’s explicit rejection to the project. This could have a significant legal impact on Kinder Morgan’s plan to extend the Trans Mountain pipeline.
Scott Smith, one of the nation’s lawyers, cited last year’s Tsilhqot’in decision by the Supreme Court of Canada as the legal basis on which the Tsleil-Waututh Nation can base their rejection of the pipeline.
The Tsilhqot’in decision stated that aboriginal title gives First Nations the right to “proactively use and manage the land,” and that governments and individuals wanting to exploit the land have to obtain “consent of the interested aboriginal group”.
“Part of aboriginal title is the right to make decisions about how the land is being used,” explained Smith, adding that the new assessment shows exactly why the Tsleil-Waututh Nation is not giving consent to the expansion of Kinder Morgan’s Trans Mountain pipeline.
“This project will cause significant impacts to the Burrard Inlet and will impact Tsleil-Waututh Nation’s title, rights, and interests, if it goes forward.” Smith added, before concluding that it’s a “huge risk for Kinder Morgan and the Crown” to go forward with the project.
This claim is supported by some of the leading lawyers in aboriginal law, including Gordon Christie, who heads the Indigenous Legal Studies program at the University of British Columbia.
A statement signed by Christie and a group of other lawyers specialized in aboriginal law, states that even though Canadian courts have yet to recognize the Tsleil-Waututh’s title over its territory, the nation’s lack of consent for the project could still impact the way it progresses.
“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,” reads the release.