Spill response vessels take to Burrard Inlet for an exercise, Sept. 19, 2018. (Trans Mountain Corp.)

Spill response vessels take to Burrard Inlet for an exercise, Sept. 19, 2018. (Trans Mountain Corp.)

B.C. First Nation alleges feds withheld information in pipeline consultation

Groups argue at Federal Court of Appeal over controversial Trans Mountain expansion

A lawyer for a B.C. First Nation is accusing the federal government of withholding key information about oil spills until after the latest consultation on the Trans Mountain pipeline was over.

Scott Smith, who represents the Tsleil-Waututh Nation, told the Federal Court of Appeal in Vancouver on Monday that the First Nation prepared three expert reports on the risks of oil spills and other environmental concerns surrounding the pipeline expansion.

A federal peer review of the reports effectively agreed with their findings that there is a lack of information about the effects and behaviour of diluted bitumen, but it wasn’t shared with the First Nation until after consultation closed, Smith said.

“Meaningful dialogue cannot occur where, as here, Canada withheld key documents until after the decision and refused to change its position even when its scientists agreed,” Smith said.

He also alleges the peer review was “substantially altered” before it was distributed with a note saying a report on diluted bitumen was not necessary to cabinet’s vote on the pipeline, effectively neutering the scientists’ conclusions.

The Tsleil-Waututh are among four B.C. Indigenous groups arguing in the court this week that the Canadian government came into the new round of consultations having predetermined the outcome before its latest approval of the Trans Mountain pipeline.

The Federal Court of Appeal tore up the government’s original approval of the pipeline in August 2018, citing inadequate Indigenous consultation among its reasons.

Lawyers for the Canadian government are expected to present arguments Tuesday.

Smith argued that Ottawa had already made up its mind about whether to approve the pipeline again before renewing the consultation. He pointed to public comments made by Prime Minister Justin Trudeau after the court quashed its initial approval, in which he said the project is in the “national interest,” as well as similar comments made by cabinet ministers.

“Canada simply refused to budge on any of these issues or change its position because it was unilaterally focused on reapproving the project and in the words of the minister of finance, ‘getting shovels into the ground,’ ” Smith said.

The result was another round of consultations that was “fundamentally flawed” before Ottawa’s latest approval of the pipeline expansion, he said.

Lawyers for the Coldwater Indian Band and a coalition of small First Nations in the Fraser Valley also presented arguments Monday.

Matthew Kirchner told the panel of three judges that the existing Trans Mountain pipeline cuts through the heart of the Coldwater reserve 12 kilometres southwest of Merritt in B.C.’s Interior.

The reserve relies entirely on the underlying aquifer for its drinking water and Ottawa has a fiduciary duty to protect it, he said.

READ MORE:Western Canada Indigenous leaders choose pipelines over poverty

“It is hard to conceive of an issue that is more fundamental, and of more fundamental importance to repairing Canada’s damaged relationship with Indigenous Peoples, than that of the protection of drinking water on reserve,” Kirchner told the court.

The band has requested a hydrogeological study since 2015, beginning with a two-year baseline report, in order to understand impacts on the aquifer.

Only two weeks before cabinet voted on the project, the Crown consultant emailed the First Nation’s chief on a Friday night providing him with vital information about how the aquifer would be analyzed and how a possible alternate route would be assessed, he said.

The chief was given until only the following Wednesday to provide a response, Kirchner said.

“There is no opportunity at all in there for meaningful dialogue,” he said.

The proposal set an arbitrary deadline for an aquifer assessment of Dec. 31, neglecting the two-year baseline review requested, he said.

“Canada and Trans Mountain continue to try to cut corners,” Kirchner alleged.

The three-day hearing is scheduled to continue through Wednesday to consider legal challenges launched by the Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band and a coalition of small First Nations in the Fraser Valley.

Several First Nations, environmental groups and the City of Vancouver had originally filed challenges making a range of arguments including that the project threatens southern resident killer whales.

The court only allowed six First Nations to proceed and called for an expedited hearing focused on the federal government’s consultation with Indigenous communities between August 2018 and June 2019.

Two First Nations have since dropped out of the appeal after signing deals with Trans Mountain Corp., the Crown corporation that operates the pipeline and is building the expansion.

The Tsleil-Waututh and environmental groups filed leave to appeal to the Supreme Court of Canada, arguing that a broader hearing was necessary, but the high court has not yet issued a decision.

Trudeau’s government has twice approved a plan to triple the capacity of the pipeline from Alberta’s oilsands to a shipping terminal in Metro Vancouver.

After the Federal Court of Appeal nixed the original approval, the Liberal government ordered the forerunner of the Canada Energy Regulator to conduct a new review focusing on marine impacts, which was completed in February.

The government also appointed retired Supreme Court justice Frank Iacobucci to oversee a new phase of consultation with affected Indigenous communities before it approved the project a second time in June.

The governments of Alberta and Saskatchewan, which support the pipeline expansion, have joined the case as interveners.

Like us on Facebook and follow us on Twitter

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Crews retrieved the overturned commercial truck from the crash scene on Friday, Nov. 20. Photo: Betsy Kline
UPDATE: Kootenay woman dies in Genelle collision

The incident occurred Thursday, Nov. 19.

A man wearing a face mask to help curb the spread of COVID-19 walks in downtown Vancouver, B.C., Sunday, Nov. 22, 2020. The use of masks is mandatory in indoor public and retail spaces in the province. THE CANADIAN PRESS/Darryl Dyck
104 new COVID-19 cases in Interior Health

IH is reporting the new numbers since Friday, Nov. 20

Marty Horswill, March 14, 1944 – November 9, 2020. File photo
Seventy years of song: Marty Horswill’s legacy remembered

The third-generation Nelson resident and vocalist died on Nov. 9

Interior Health says there have been 24 cases of COVID-19 in Salmo in November. Photo: Wikimedia Commons
UPDATED: COVID-19 cases rise to 24 in Salmo

The cases are connected to social events in the village

Trail RCMP seized illicit drugs, cash and a weapon following a traffic stop in West Trail on Nov. 18. Photo: Trail RCMP
West Kootenay man, woman face drug charges after traffic stop

Police report that three types of illicit drugs were seized as well as cash and a Taser

People wearing face masks to help curb the spread of COVID-19 cross a street in downtown Vancouver, on Sunday, November 22, 2020. The use of masks is mandatory in indoor public and retail spaces in the province. THE CANADIAN PRESS/Darryl Dyck
B.C. reports 17 COVID deaths, 1,933 new cases as hospitalizations surge over the weekend

There are 277 people in hospital, of whom 59 are in ICU or critical care

An aerial shot of Cedar Valley Lodge this past August, LNG Canada’s newest accommodation for workers at the project site in Kitimat. This is where several employees are isolating after a COVID-19 outbreak was declared last Thursday (Nov. 19). (Photo courtesy of LNG Canada)
Forty-one positive COVID-19 cases associated with the LNG Canada site outbreak in Kitimat

Thirty-four of the 41 cases remain active, according to Northern Health

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

Join Black Press Media and Do Some Good
Join Black Press Media and Do Some Good

Pay it Forward program supports local businesses in their community giving

Workers arrive at the Lynn Valley Care Centre seniors home, in North Vancouver, B.C., on Saturday, March 14, 2020. It was the site of Canada’s first COVID-19 outbreak in a long-term care facility. THE CANADIAN PRESS/Darryl Dyck
Rapid tests ‘not a panacea’ for care homes, Dr. Bonnie Henry says

B.C. lacks capacity for daily tests of thousands of workers

(Delta Police Department photo)
Cannabis edibles found in Halloween bag lead B.C. police to illegal lab

Delta police arrested a man and a woman while executing a warrant at a residential property Nov. 20

A woman being arrested at a Kelowna Value Village after refusing to wear a mask on Nov. 22.(@Jules50278750/Twitter)
VIDEO: Woman arrested for refusing to wear mask at Kelowna Value Village

RCMP claims the woman was uncooperative with officers, striking them a number of times and screaming

B.C. Liberal MLA Shirley Bond questions NDP government ministers in the B.C. legislature, Feb. 19, 2020. (Hansard TV)
Cabinet veteran Shirley Bond chosen interim leader of B.C. Liberals

28-member opposition prepares for December legislature session

Motorists wait to enter a Fraser Health COVID-19 testing facility, in Surrey, B.C., on Monday, November 9, 2020. THE CANADIAN PRESS/Darryl Dyck
COVID-19: What do rising positivity rates mean for B.C.? It’s not entirely clear

Coronavirus cases are on the rise but the province has not unveiled clear thresholds for further measures

Most Read