Documentation:Open Case Studies/FRST522/The Alberta to British Columbia “Trans Mountain Expansion Project”: Assessing the role of the Tsleil-Waututh First Nation, British Columbia, Canada
- 1 Summary
- 2 Description
- 3 International Law
- 4 Canadian Law
- 5 Stakeholders
- 6 Discussion
- 7 Recommendations
- 8 References
Over the last decade, oil sands pipelines have been one of the most divisive issues in the political dynamics of energy in Canada. Oil sands are comprised of a mixture of sand, water, and bitumen (heavy oil which cannot flow on its own). Due to their high viscosity and low mobility, oil sands are challenging to extract, transport, and refine. For these reasons, pipelines are considered to be the most convenient means of transporting crude oil and bitumen. At the centre of the discussions about oil sands pipelines is the Kinder Morgan’s Trans Mountain Pipeline Expansion Project. This project is proposed by an energy transportation and distribution company, Trans Mountain Pipelines. On June 18, 2013, Kinder Morgan filed an application with the Canadian National Energy Board to triple the capacity of the pre-existing Trans Mountain pipeline to 1,150 km that transports oil from Alberta to British Columbia and Washington State. The Trans Mountain proposed to reactivate sections of the existing pipeline, enlarge storage terminals, and build new pump stations at the marine terminal in Burnaby. The federal government approved the Trans Mountain Expansion Pipeline on November 29, 2016. However, the Federal Court of Appeal overturned the National Energy Board’s (NEB) approval of the Trans Mountain Expansion Pipeline in August 2018, citing insufficient consultation with First Nations groups and assessment of its environmental impact. In June 2019, the Canadian government approved the Trans Mountain Expansion Pipeline for a second time. Currently, it is an evolving case between various stakeholders.
Trans Mountain Expansion Project
The Trans Mountain Pipeline Expansion Project is a proposal to expand the existing Trans Mountain Pipeline, which was built in 1953. The expansion would increase the pre-existing pipeline’s capacity from 300,000 oil barrels per day to 890,000 oil barrels per day. Just as the existing pipeline, the new expansion will run from Edmonton, Alberta to the WestRidge Marine Terminal in Burnaby, British Columbia. The Trans Mountain Pipeline Expansion Project would consist of two pipelines: Line 1 and Line 2. Line 1 is a 1,147 km pipeline which has the capability of transporting 350 kbpd and would use mostly existing TMPL pipeline to transport refined products and light crude oils. Line 2 is a 1,180 km pipeline of which 987 km would be newly built pipeline. It would have the capacity of transporting 540 kbpd for heavy crude oils. The proposed route for the TMEP is shown in Figure 1. Further, the TMEP would consist of 12 new pump stations, new storage tanks, and other components to support the two pipelines. The Trans Mountain Pipeline Expansion Project is controversial and will have impacts on environmental, economic, and social systems.
Tsleil-Waututh First Nation
The Trans Mountain Pipeline Expansion Project is controversial as it may potentially have adverse effects environmentally, economically, and socially. Many stakeholders participated as intervenors in the National Energy Board hearings to oppose the Trans Mountain Expansion Project due to their concerns. Intervenors are individuals or groups directly affected by the proposal or an epistemic community (as learned in FRST 522) who have expertise to contribute during the pipeline’s evaluation . Amongst these groups were a few First Nations who have voiced their concerns through the media and court challenges.
Tsleil-Waututh First Nation are the People of the Inlet and a distinct Coast Salish nation. They have occupied and governed the territory before Contact, at Contact, and continue to do so today. The Tsleil-Waututh Nation have never ceded control of their traditional territory. In spite of their resistance, less than 200 years since contact, key marine resources they have relied on for thousands of years such as salmon, herring, and shellfish in Burrard Inlet have become scarce. Tsleil-Waututh First Nation holds Aboriginal title over a highly urbanized area, which they share with many private and public interests. For this reason, Tsleil-Waututh First Nation's land claim under the treaty process is complex. Nonetheless, Tsleil-Waututh First Nation, "seek a treaty that prescribes Tsleil-Waututh First inclusion in all decisions involving [their] traditional territory and assert [their] constitutionally protected Aboriginal rights over [their] traditional territory" .
The Tsleil-Waututh First Nation have inherent jurisdiction and law and through their Stewardship Policy, which allows them to mandate a review of all proposed water, land, and resource policies, plans and developments pertaining to the Consultation Area. Tsleil-Waututh First Nation applied Stewardship Policy to the proposed Trans Mountain Pipeline Expansion Project. The Chief and Council as part of the contemporary governance of the Tsleil-Waututh First Nation banned the project under Tsleil-Waututh First Nation law . Council directed their Treaty Lands and Resources Department to conduct its own review based in Tsleil-Waututh First Nation legal principles, traditional knowledge, and community engagement . The Tsleil-Waututh community have also voiced their concerns ― they voted unanimously to oppose the Trans Mountain Expansion Project . This is a pioneering example of First Nations acting on their authority to review and decide whether a project should proceed in their territory. This modern day application of Indigenous legal orders consequently created legal risk for the Trans Mountain Expansion Project as a matter of Canadian constitutional law.
Oil sands are comprised of a mix of sand, water, and heavy hydrocarbon called bitumen. Shallow deposits are surface mined using giant shovels and trucks . The majority of oil sands are deep deposits that are approximately 80 metres underground that are extracted by using steam-assisted gravity drainage . During this phase, steam heats bitumen to fluid and it is pumped to the surface. During the refinery process, there is an addition of hydrogen and subtraction of carbon from natural gas to bitumen . By-product of this process such as water, solids, and un-extracted bitumen are discharged into tailing ponds . Reports show approximately 11 million litres of wastewater escape from tailings ponds each day; some ecologists claim this is a conservative estimate . This practice is extremely controversial since waters in the ponds are found to contain arsenic, mercury, polycyclic aromatic hydrocarbons (PAHs), and other toxins . In one study, goldfish exposed to wastewater showed significantly lower testosterone levels than the control population . This may be due to naphthenic acids found in tailing ponds. Further, oil sands produce 30-70% more greenhouse gas emissions than conventional oil . In the 2008 Congressional Research Service Report, it was found that oil sands produced half of Canada’s growth in greenhouse gas emissions in 2010 . These results suggest that oil sands are taking Canada in the opposite direction of the Kyoto Protocol. In 2008, Canada was 163 Mt over its Kyoto target . Finally, there seems to be a link between oil spills and algal blooms, which is known to contribute to climate change. Increasing global temperatures are associated with increased algal blooms.
According to the Stewardship Policy Assessment by the Tsleil-Waututh Nation for the Trans Mountain Pipeline Expansion proposal, oil spills in Burrard Inlet are extremely likely and less than half of the volume of spilled oil can be cleaned up . Further, they reported that any delay in spill clean-up decreases the total volume of oil recovered significantly. The Stewardship Policy Assessment concluded that even small amounts of spills can cause significant environmental damage, such as shoreline erosion in fragile ecosystems such as intertidal habitats . Another Environmental Assessment report highlighted the concern surrounding construction and operation which would impact local air quality and cause noise pollution, disturbing local communities and wildlife. One study found that increased marine shipping traffic may result in negative impacts on marine populations, such as the Chinook salmon and killer whale pods 
According to the Stewardship Policy Assessment by the Tsleil-Waututh Nation for the Trans Mountain Pipeline Expansion proposal, in the case of large oil spills, over one million residents around Burrard Inlet would be exposed to toxic air emissions within 96 hours. Perhaps, the most concerning is the lighter condensate from the diluted bitumen which can evaporate and have negative long-term impacts such as on fetal development, reproductive, neurological, and immunological effects . Other potentially negative health implications for the Tsleil-Waututh Nation is the association of carcinogenic PAHs found in shellfish with oil spills. Potential oil spills also threaten food sovereignty of the Tsleil-Waututh Nation ― the inherent right to control their own food systems. The sensitive sites at risk of oil spills carry importance for subsistence and cultural activities and therefore, Tsleil-Waututh Nation cannot accept any risks. A study found higher rates of cancer in Tsleil-Waututh Nation families that continued to harvest shellfish . In Alberta, a rare form of cancer called cholangiocarcinoma is 2-3 times higher in Indigenous communities compared to non-Indigenous communities. Further, there are reports of elevated prevalence of diabetes, hypertension, renal failure, lupus linked with toxins found in tailings pond water . Unfortunately, many Indigenous Peoples continue to consume contaminated foods due to lack of alternatives and nutritional and cultural values. Beyond physical health, discontinuity of culturally significant practices has been associated with negative effects on mental health including, addictions, and suicide .
Pipeline work camps also pose negative social impacts to the Tsleil-Waututh Nation. Trans Mountain Pipeline Expansion Project will take place on lands on or near Indigenous territories and this comes at a significant cost. Man camps are large encampments of men who work for the oil industry. They have been linked to sexual and domestic violence, drugs and alcohol, murders and disappearances, reproductive illnesses, threats to culture and Indigenous life-ways, and other social stressors . Indigenous communities ― particularly women, children, and 2SLGBTQQIA people ― are most vulnerable . This may be explained by a migration of non-Indigenous men with high salaries that have no stake in the host Indigenous community. In addition, man camps stress already limited social infrastructure in Indigenous communities such as policing, health, and mental health services .
The Tsleil-Waututh Nation do not consent to Trans Mountain Pipeline Expansion Project as they believe it denies the re-establishment of Tsleil-Waututh subsistence economy. In addition, development proposals negatively impact property values.
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the General Assembly in September 2007 . Today, UNDRIP is an international instrument on the rights of Indigenous Peoples that establishes a universal standard that elaborates on existing human rights and fundamental freedoms for their survival, dignity, and well-being. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) along with the Convention on Biological Diversity (CBD) and the International Labour Organization Convention 169 (ILO 169) are powerful international instruments that support a principle called Free, Prior, and Informed Consent (FPIC) .
Free, Prior, and Informed Consent (FPIC)
The United Nations Declaration on the Rights of Indigenous Peoples makes specific mention of Free, Prior, and Informed Consent (FPIC) as a prerequisite for any activity which affects their ancestral lands, territories, and natural resources. Through UNDRIP, specific rights that relate to Indigenous Peoples are recognized and this allows them to negotiate and give or withhold their consent to any project that will be designed, implemented, monitored, and evaluated .
The language of consent is important because it includes a veto option and this can potentially decrease coercion in asymmetric relations between Indigenous Peoples and the state. However, a veto right in consent is not absolute and refusal to consent may be overridden in certain circumstances. For instance, a veto right may be overridden when refusal to consent is likely to cause greater harm to others. Some experts argue that overriding refusal to consent cancels its transformative power and is committing a wrong against Indigenous Peoples . However, overriding refusal presents a heavy burden on the State, therefore, there is a strong incentive for the government to enter into discussion with Indigenous Peoples to negotiate .
Transnational Indigenous movements and Indigenous Peoples view FPIC as a constraint on national sovereignty and recognition of Indigenous political institutions . FPIC is transformative for its ability to empower Indigenous self-determination. as learned in FRST 522, it has the potential to change the terms of a dialogue between asymmetric parties. However, there remains some pressing questions about the operationalization of FPIC on the ground . Transnational Indigenous movements want to make FPIC a demanding principle; states and extractive firms want to re-characterize the principle of FPIC . More empirical research is needed.
Canada was one of the four countries which voted against the United Nations Declaration on the Rights of Indigenous Peoples in September 2007 . Canada’s representative was cited stating their concerns regarding veto rights at the UN General Assembly. FPIC is contentious because it counters Canada’s claim of exclusive and permanent sovereignty over natural resources . The government views FPIC as Indigenous veto over development projects. In 2016, Canada reversed its position and now supports the Declaration. However, there is still a persistent debate on the meaning of consent.
The legal context in Canada provides support for Indigenous Peoples’ sovereignty. Key considerations include:
- Section 35 of the Canadian Constitution which allows Indigenous Peoples' rights to hunt, fish, and gather for subsistence, ceremonial, and cultural survival purposes 
- Federal laws and court decisions over Indigenous rights and legal title to lands and resource access 
- Historical and modern treaties 
However, Indigenous rights are frequently ignored by the government of Canada. In such cases, Indigenous communities must resort to lengthy and expensive court challenges in order to force a government to honour its legal obligations. As learned in FRST 522, wealthy neighbourhoods in big cities are seldom faced with such challenges from resource extraction projects. Not only do the majority of the political decision-making population live far away from where natural resources are extracted, visible minorities and economically disadvantaged people are disproportionately targeted by industry development. 
Authority Over Trans Mountain Pipeline
In Canada, review of projects crossing inter-provincial boundaries require the involvement of several jurisdictions . The federal and provincial governments and agencies have formed arrangements over projects such as Trans Mountain Expansion Project.
Trans Mountain submitted its application to the National Energy Board for the Trans Mountain Expansion Project in December 2013 . By 2014, the NEB had selected intervenors who would participate in the review process and continued to host meetings with regulators and stakeholders . A three member panel composed of NEB members reviewed the TMEP. The involved provinces, Alberta and British Columbia, rely on these NEB reviews to make their own decisions under provincial legislation on whether to approve the project . In early 2016, the NEB recommended approval of the Trans Mountain Expansion Project with 157 conditions. By late 2016, the federal government approved the Trans Mountain Expansion Project with 157 conditions. The operation was scheduled to begin in December 2019.
Following the approval of the Trans Mountain Expansion, nine applicants challenged Canada’s decision in Tsleil-Waututh Nation v Canada, which the Canadian Federal Court of Appeal upheld. Among the nine applicants were six First Nations whose claims alleged that Canada failed to fulfill its duty to consult. However, in June 2019, Trans Mountain Expansion Project announced the commencement of the construction of the pipeline. In September 2019, the Tsleil-Waututh Nation announced their intentions to take their legal battle against the project to the Supreme Court of Canada. The Tsleil-Waututh Nation claimed the Federal Court of Appeal made a legal error by excluding grounds that were outside the degree of consultation with Indigenous Peoples. This is an on-going battle.
Despite the recognition from the Supreme Court of Canada of Indigenous Peoples’ inherent title to their nations and their right to occupy land in “organized, distinctive societies with their own social and political structure”, federal and provincial laws allow exploitation of the resources of the land . This suppression of Indigenous governance systems is linked to the degradation of many nations’ territories. However, Trans Mountain Pipelines maintains that the TMEP will benefit Canada by providing new pipeline capacity to accommodate the transportation demand from increased production of Canadian oil and by increasing the returns to oil producers through accessing new, higher priced markets in the Pacific Rim .
Affected Stakeholders and Relative Power
The Tsleil-Waututh First Nation are especially affected by the Trans Mountain Pipeline Expansion Project since the proposal falls within Tsleil-Waututh Nation consultation area ― 28 kilometres of the pipeline including storage facilities are in Tsleil-Waututh territory and the WestRidge Marine Terminal is less than 2 kilometres from the main Tsleil-Waututh Reserve.
According to Tsleil-Waututh oral history, approximately 10,000 Tsleil-Waututh members lived in their traditional territory, before contact with colonizers. Tsleil-Waututh ancestors depended on cycles of hunting, harvest, and preserving foods for their survival . They have a link to their land since time out of mind: numerous archaeology sites ― some thousands of years old ― confirmed where Tsleil-Waututh ancestors gathered . Despite the pains of colonization, disease, reserve system, and residential schools, Tsleil-Waututh people persevered in stewardship of their territory and continued practicing and passing down their language and culture. Tsleil-Waututh people's obligation is to fulfill their sacred responsibility to care for their traditional territory to ensure future generations can thrive . They are guided by their stewardship of the land, air, and water. Tsleil-Waututh people are interconnected with the environment they inhabit and their livelihoods will be greatly threatened by the Trans Mountain Pipeline Expansion project.
Canada supports the United Nations Declaration on the Rights of Indigenous Peoples and effectively, the principle of Free, Prior, and Informed Consent. However, the veto right in consent is not absolute and the refusal to consent may be overridden in certain circumstances . Despite the recognition from the Supreme Court of Canada of Tsleil-Waututh Nation's birthright right to occupy their territories, federal and provincial laws allow industries to exploit their lands. For these reasons, Tsleil-Waututh First Nation have relatively low power in determining the fate of their territories.
Interested Stakeholders and Relative Power
The federal government of Canada is an interested stakeholder. They are a political decision-making body based in Ottawa, Ontario, outside of the Tsleil-Waututh First Nation community. The government of Canada has approved the Trans Mountain Expansion project because they believe it is in the Canadian public interest to provide thousands of middle-class jobs and increase access to global markets . Their objective is to generate $46 billion in government revenues over the first 20 years of operation . Through this project, the government of Canada hopes to become a stable global supplier of oil. Once the NEB releases its final report on the assessment of the project, the federal cabinet has the power to approve or reject the pipeline.
The Kinder Morgan company is a parent company of the Trans Mountain Expansion Project and it is an interested stakeholder. It is a Texas-based company and holds great importance to the economies of British Columbia and Canada . Its interests are in expanding the existing Trans Mountain Pipeline to access global markets and increase its revenues and profits. They have support from the federal government of Canada and pro-resource development advocacy groups. While not as powerful as the government of Canada, the Kinder Morgan company has significant power to influence major decisions.
Environmental organizations such as Raincoast Conservation Foundation is an interested stakeholder. It is based in British Columbia and is comprised of conservationists and scientists committed to protecting habitats and resources of umbrella species . Raincoast Conservation Foundation teamed up with other organizations to file a motion in the Federal Court of Appeal to appeal the pipeline expansion approval in November 2019 . These environmental organizations have been successful before at convincing the court to overturn cabinet approval of the Trans Mountain Pipeline Expansion project . These organizations are not as powerful as the government of Canada and the Kinder Morgan company when it comes to major decision-making power.
In August 2018, Federal Court of Appeal overturned Ottawa's approval of the Trans Mountain Expansion Project in an unanimous decision that acknowledged the concerns of Indigenous Peoples had not be considered . This legal challenge was backed by more than a dozen groups, including the City of Vancouver, several First Nations, and environmental organizations .
In addition, the British Columbia provincial government passed legislation in November 2019 to implement the UNDRIP, which is regarded as the framework for reconciliation by the Truth and Reconciliation Commission . Frameworks such as UNDRIP and FPIC can change social attitudes and normalize important discussions on Indigenous rights.
In June 2019, the Canadian government approved the Trans Mountain Expansion Pipeline for a second time. However, there was still no acknowledgement of concerns regarding health risks and food sovereignty of the Tsleil-Waututh Nation.
The government should fulfill the commitment to Canada’s Constitution Act, 1982
- Food sovereignty
- Section 35: “Indigenous rights to hunt, fish, gather subsistence, ceremonial, and cultural survival purposes” 
The government should respect their obligations to UNDRIP
- Article 22: “States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination" 
- “Fundamental importance of the right to self-determination of all peoples" 
- “Enjoyment of their own means of subsistence” 
- “Maintain their distinctive spiritual relationship with their traditionally owned lands, territories, waters and coastal seas… to uphold their responsibilities to future generations” 
- “Highest attainable standard of physical and mental health” 
The government should respect the ratified Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (CAT), 1987
- Man Camps
- “States must take all necessary measures to prevent and punish torture and cruel treatment” 
The government should respect the international agreement with Kyoto Protocol
- Oil sands produces 30-60% more greenhouse gas emissions than conventional oil 
- Inconsistent with action on climate change
- “Include provision to address impacts on the safety of Indigenous women and girls in all Impact and Benefit Agreement negotiations” 
- “Employ gender-based analysis for all proposed and operating development projects in or near Indigenous territories” 
- Develop a long-term plan that will help Indigenous communities if and when the pipeline expansion commences
- Support Indigenous communities to assert rights over their ancestral and traditional lands.
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