By Erin Hanson
Erin Hanson is a 2016 recipient of the graduate research grant from The Royal Canadian Geographical Society. Her work examines how First Nations, particularly the Vancouver area’s Tsleil-Waututh Nation, respond to resource development in light of the groundbreaking 2014 Supreme Court Tsilhqot’in ruling that requires federal and provincial governments to consult with, and, in some circumstances acquire consent from, First Nations prior to beginning development projects in their territories.
On Nov. 29, Prime Minister Trudeau announced the approval of the Kinder Morgan Trans Mountain pipeline expansion, a project that would nearly triple the current pipeline’s capacity to transport diluted bitumen from Alberta’s oilsands to an export facility at Burrard Inlet in Vancouver, the heart of the Tsleil-Waututh Nation’s territory.
The Tsleil-Waututh, which means “People of the Inlet,” is a Coast Salish First Nation whose members have lived in and around Burrard Inlet since time immemorial. The nation’s creation stories occur at the inlet, and the Tsleil-Waututh continue to use the land, water and resources of their territory, which have sustained their community for countless generations.
Chief Maureen Thomas and other Tsleil-Waututh representatives were in Ottawa prior to the announcement to provide the federal government with supplementary scientific and economic data to support their nation’s rejection of the pipeline expansion proposal, which has been at their doorstep since 2012.
The nation claims the Trans Mountain pipeline expansion violates Coast Salish law. In 2014, the nation conducted their own impact assessment of the project based on these standards. The assessment considered expert scientific reports, such as oil-spill analyses, to determine impacts to the environment, culture and economy of the Tsleil-Waututh, and concluded that the project posed too many risks to be acceptable.
Consultation or consent?
In Canada, Crown governments have a legal obligation to consult with First Nations when a proposed development has the potential to infringe upon their constitutionally protected Aboriginal rights and title. The United Nations Declaration on the Rights of Indigenous Peoples, and the Supreme Court of Canada’s 2014 Tsilhqot’in decision further raise the potential for governments to not only have to consult with Indigenous Peoples, but require their consent on decisions that would impact their territories.
Not only does the Tsleil-Waututh Nation claim Crown consultation has been inadequate, they have not consented to the Trans Mountain Expansion Project and are likely to continue challenging it in court. It remains to be seen how the Canadian government will reconcile its decision to approve these projects with its fiduciary and constitutional obligations to the Tsleil-Waututh Nation, and with their stated goals of improving relations with Indigenous Peoples.
The Tsleil-Waututh are just one example of the many Indigenous groups across North America asserting jurisdiction over their territories, often by demanding higher standards for responsible development in accordance with their Indigenous legal systems. Indeed, framing such matters as First Nations opposition to development is an oversimplification that obscures underlying issues. We are witnessing Indigenous groups enacting their own decision-making authority over their lands, waters, and territories for future generations.