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

Just Posted

Surrey Mayor delivering “virtual” State of the City Address on Tuesday. (Screen shot)
Surrey Mayor says city is ‘earning accolades from near and far’

Doug McCallum delivered his second State of the City Address on Tuesday since being elected in 2018

Fraser Valley Heritage Rail Society volunteers stand on the train platform in Cloverdale in 2020. A new exhibit about FVHRS and Surrey’s train history opens at the Museum of Surrey June 2. (Photo: Malin Jordan)
New exhibition on Surrey’s train history to open at Museum of Surrey

Separate two-day event welcomes kids June 25-26

Shannon Claypool, president of the Cloverdale Rodeo & Exhibition Association, stands outside the Cloverdale Rec. Centre. The rec. centre has been set up as a mass vaccination site by Fraser Health and the Association has decided to cancel the rodeo in order to offer the fairgrounds for public parking. (Submitted)
Second year in a row it’ll be quiet on the Cloverdale Fairgrounds over May Long Weekend

Shannon Claypool says planning for next year is already underway

The George Massey Tunnel will be closed overnight May 28 and 29 to test the tunnel’s fire suppression system and overhead lane control signals. (Black Press Media file photo)
Overnight Massey Tunnel closures coming May 28, 29

Closure to allow safe testing of tunnel’s fire suppression system and overhead lane control signals

A prowling coyote proved no match for a stray black cat who chased it out of a Port Moody parking lot Friday, May 14. (Twitter/Screen grab)
VIDEO: Cat who chases away coyote asked to join Port Moody, Vancouver police 

Caught on camera Friday, the black cat jumps out from under a parked car and runs the wild animal out of a vacant lot

The Combined Forces Special Enforcement Unit released a poster Tuesday, May 18 featuring the names and photos of more suspects involved in the Lower Mainland gang conflict.
Police issue warning for 8 more men involved in Lower Mainland gang conflict

B.C.’s gang task force says it’s expecting ‘violence to continue and escalate’

A restaurant server on White Rock’s Marine Drive serves customers on a roadside patio. Indoor dining and recreational travel bans have been in effect since late March in B.C. (Peace Arch News)
B.C.’s COVID-19 infection rate falls to 411 cases Tuesday

360 people in hospital, up slightly, two more deaths

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

The Banff National Park entrance is shown in Banff, Alta., Tuesday, March 24, 2020. THE CANADIAN PRESS/Jeff McIntosh
Minister asks Canadians to camp carefully in national parks as season starts

Kitchen shelters in Banff National Park closed, trails on Vancouver Island will only be one-way

Names of those aboard the ship are seen at Komagata Maru monument in downtown Vancouver, on Tuesday, May 18, 2021. The City of Vancouver has issued an apology for its racist role in denying entry to 376 passengers aboard a ship that was forced to return to India over a century ago. Mayor Kennedy Stewart says discrimination by the city had “cruel effects” on the Sikhs, Hindus and Muslims aboard the Komagata Maru, which arrived in Burrard Inlet on May 23, 1914. THE CANADIAN PRESS/Darryl Dyck
Vancouver mayor says sorry for city’s role in turning away South Asians in 1914

Kennedy Stewart has declared May 23 as the annual Komagata Maru Day of Remembrance

A crew of WestCoast WILD Adventures employees tackled an onslaught of litter left at the ‘Locks of Love’ fence at Wally Creek on May 2. (Anne-Marie Gosselin photo)
Litter woes consume popular ‘Locks of Love’ fence on B.C.’s Pacific Rim

Popular view spot near Tofino plagued by people hanging masks and other unwanted garbage

Vincent Doumeizel, senior advisor at the United Nations Global Compact on Oceans, as well as director for the Food Programme for the Lloyd’s Register Foundation, pulls up some sugar kelp seaweed off the French coast in April 2020. He was the keynote speaker during the opening ceremony of the inaugural Seaweed Days Festival. (Vincent Doumeizel/Submitted)
Let’s hear it for seaweed: slimy, unsexy and the world’s greatest untapped food source

Experts talks emerging industry’s challenges and potential at Sidney inaugural Seawood Days Festival

Troy Patterson, a Cadboro Bay 15-year-old, got a virtual meeting with B.C.’s environment minister months after he started an online petition calling for construction of the Coastal GasLink pipeline to stop. (Jake Romphf/News Staff)
B.C. teen’s 23,000-name Coastal GasLink petition gets him an audience with the minister

15-year-old Saanich high school student and George Heyman discussed project for about 30 minutes

Most Read