Assignment 1
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University Canada West *
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601
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History
Date
Dec 6, 2023
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docx
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Introduction
This assignment To critically analyze the relationship between Indigenous communities in British Columbia
and the development of the Trans Mountain Pipeline. This analysis should consider historical precedents, current
dynamics, challenges, benefits, and the broader implications of Indigenous consent in such projects.
Background and Context (15%): 1,5 page
Canadian Government stand on
Provide a brief overview of the Trans Mountain Pipeline, including its significance in Canadian economic development.
The Trans Mountain Pipeline, often referred
to as TMX, has a long history dating back to the late 1940s when it was first proposed. It was envisioned to support the expansion of Alberta's oil sands, create markets for Canadian oil, and reduce Canada's dependence on foreign oil. The pipeline was initially approved in 1951 without environmental assessment or public consultation, and it was completed in 1953.
The Trans Mountain Pipeline runs from Edmonton, Alberta, to Burnaby, British Columbia. It includes various terminals along the route, including Edmonton, Kamloops, Sumas, Burnaby, and Westridge Marine terminals. The pipeline is unique in that it has the capacity to transport both crude and refined oil products.
In terms of economic benefits, supporters of the pipeline argue that it provides several advantages for Canada and British Columbia. These benefits include:
1.
Market Diversification
: By expanding the pipeline, Canada can access new markets, particularly in Asia, reducing its reliance on the United States as the primary customer. This diversification can potentially lead to higher oil prices and greater economic stability.
2.
Job Creation
: The construction and operation of the pipeline provide employment opportunities. During construction, it's estimated to create thousands of jobs, and in the long term, it supports employment in the oil and gas sector.
3.
Government Revenues
: Revenues generated from the pipeline, such as taxes and royalties, contribute to government
budgets at both the federal and provincial levels. This income can be used for public services and infrastructure development.
4.
Energy Security
: A domestic pipeline infrastructure enhances
Canada's energy security, reducing its reliance on foreign oil sources.
However, there are disagreements about the actual economic benefits of the pipeline. Some critics argue that the economic benefits have been overstated. They contend that the economic risks, such as potential negative impacts on real estate, tourism, and fisheries, have not been adequately considered. They also raise questions about how the benefits are distributed, suggesting that British Columbia may not receive a fair share of the economic gains.
The Trans Mountain Expansion Project (TMX) proposed by Kinder Morgan in 2012 aimed to triple the pipeline's capacity, transport more oil, and increase tanker traffic. This expansion involved adding new pipelines and modifying existing infrastructure.
The project received significant attention and opposition from environmental organizations and Indigenous groups due to concerns
about the potential for oil spills, impacts on Indigenous rights and territories, and its contribution to climate change.
It's important to note that the Trans Mountain Pipeline expansion has
faced legal challenges and regulatory processes, and its approval has been a subject of political debate. The Canadian federal government, under Prime Ministers Stephen Harper and Justin Trudeau, has played a key role in the project's approval and development.
In summary, the Trans Mountain Pipeline has a long history, and debates about its economic benefits, environmental impacts, and Indigenous concerns have made it a contentious and highly scrutinized project in Canada. The economic benefits are a key point
of contention, with differing perspectives on the extent of these benefits and their distribution.
Trans Mountain Pipeline Expansion Project | Open Case Studies (ubc.ca)
Between 1961 and 2013, the Trans Mountain pipeline reported a concerning
record of 81 liquid hydrocarbon spill incidents to the National Energy Board
(NEB), with an average annual spill rate of 1.53. During this period,
approximately 5,799,700 liters of liquid hydrocarbons were spilled, with
almost 57% of this volume occurring in just three years: 1966, 1977, and
1985. These oil spills were characterized by their random and sporadic
nature, often stemming from accidents, material failures, or unforeseen
causes. Faulty welds, construction defects, human error, and even natural
forces were identified as contributing factors to some of the most
environmentally disastrous oil spills in the Trans Mountain pipeline's history.
Historical Background Report: Trans Mountain Pipeline, 1947-2013 Sean Kheraj Department of
History York University
https://vancouver.ca/images/web/pipeline/Sean-Kheraj-history-of-tmp.pdf
Discuss the Indigenous communities affected by this pipeline's development in British
Columbia.
The Trans Mountain oil pipeline expansion project in Canada could have significant negative effects on the health and food sovereignty of the Tsleil-
Waututh Nation (TWN), an Indigenous community. The expansion could lead to contamination in their traditional food sources, making it unsafe to eat. Monitoring by the government and documentation from TWN have shown that shellfish in their territory, near where the oil is transported, have elevated levels of biotoxins, which are harmful substances.
While TWN has worked to reopen some shellfish harvesting areas, the pipeline expansion could increase health risks in two ways. Firstly, more chemical toxins could accumulate in the environment due to the pipeline. Secondly, there could be an increase in dangerous biotoxins. Additionally, the expansion of the pipeline, which would lead to more fossil fuel use and contribute to climate change, could worsen the situation. This is because climate change may lead to more algae blooms, which can produce toxins in the water.
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The problem is that the environmental assessment process did not adequately consider these local health concerns, as well as the broader impact of climate change. Therefore, a new assessment should be done that takes into account these important issues, along with questions of fairness, sustainability, and the right of Indigenous communities to have control over their food sources
https://link.springer.com/article/10.1057/s41271-019-00186-1
Jonasson, M.E., Spiegel, S.J., Thomas, S.
et al.
Oil pipelines and food
sovereignty: threat to health equity for Indigenous communities.
J Public
Health Pol
40
, 504–517 (2019). https://doi.org/10.1057/s41271-019-00186-1
Historical Overview (20%): 2 page
Investigate the historical relationship between Indigenous communities in British Columbia
and prior infrastructural or developmental projects.
Contemporary examples of Indigenous land management and protection highlight the ongoing struggles of Indigenous communities to assert their rights and stewardship over their ancestral territories in the face of settler colonialism and resource development.
1.
Nisga’a Treaty Settlement Lands
: The Nisga’a people, with over 6,000 citizens, faced a long history of dispossession and encroachment on their territories. After a protracted struggle, they reached a modern treaty in 2000, which granted them a portion of their traditional lands, self-government rights, and a cash settlement. However, some criticized the treaty for the portion of land ceded and concerns about potential exploitation
of the territory.
2.
Six Nations and the Haldimand Tract
: The Haudenosaunee Confederacy, which includes Six Nations, has a rich history of democracy and relational sovereignty. Their struggle centers around the Haldimand Tract, an area promised to them in exchange for their support during the American Revolutionary War. Dispossession and land disputes have led to ongoing land reclamation efforts.
3.
Westbank First Nation
: Westbank sought economic self-
determination by developing its land-use plans and
transitioning away from the Indian Act land management system. They created their own land code and self-government
framework, allowing for leaseholds and land use regulation, emphasizing economic opportunities without ceding their territories.
4.
Wet’suwet’en Yintah
: The Wet’suwet’en have resisted resource development projects, notably pipelines, on their unceded lands. The Delgamuukw case recognized their Aboriginal Title but also allowed infringements by the Crown. They continue to defend their territories, emphasizing their role
as land defenders and asserting their unique legal and governance systems.
These examples underscore the resilience and determination of Indigenous communities to protect and manage their lands while engaging with colonial systems and modern legal mechanisms. Their struggles raise questions about sovereignty, resource exploitation, and the ongoing impact of historical dispossession.
Land Is Life: Indigenous Relationships to Territory and
Navigating Settler Colonial Property Regimes in Canada
by Clifford Atleo
*
and
Jonathan Boron
School of Resource and Environmental Management, Simon Fraser University, Technology and Science Complex 1, 643A Science Rd, Burnaby, BC V3J 0A4, Canada
https://www.mdpi.com/2073-445X/11/5/609
Highlight major historical events or policies that have shaped the context of Indigenous rights
and consultation in BC.
The Canadian Constitution Act of 1982 protected Indigenous rights, but it didn't clearly define them. The courts have had to decide these rights through legal battles, which has strained communication and trust between Indigenous peoples and the government.
Modern treaties that acknowledge self-government are seen by some as a way to further manipulate and reduce Indigenous rights, and Canadian courts have been hesitant to recognize Indigenous sovereignty. Unlike the United States, Canada lacks laws that grant jurisdictional rights to Indigenous peoples.
However, there is hope for Indigenous rights and pipeline justice in Canada. The government has started to embrace the UN Declaration
on the Rights of Indigenous Peoples (UNDRIP) and is working towards its meaningful implementation.
Pipeline justice is closely related to energy justice, which considers fairness in energy distribution, decision-making processes, and recognizing the rights and perspectives of marginalized groups, including Indigenous communities. Indigenous voices must be heard
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and respected in energy decisions to achieve true justice. Various studies have explored these concepts and highlighted the need for deeper consideration of Indigenous perspectives and greater support for Indigenous initiatives to ensure a just and inclusive energy transition.
Hurlbert, M. A., & Datta, R. (2022). When the environment is destroyed, you're destroyed:
Achieving Indigenous led pipeline justice. Energy Research & Social Science
, 91
, 102711.
https://doi.org/10.1016/j.erss.2022.102711
https://www.sciencedirect.com/science/article/pii/S2214629622002158
The duty to consult with Indigenous Peoples in resource development projects in Canada, as mandated by the courts, has been a source of ongoing conflict and legal challenges. Different stakeholders, including Indigenous groups, government, and industry, have varying understandings of what this duty entails, which has led to disputes and dissatisfaction. The recent overturning
of the approval for the Trans Mountain pipeline project highlighted these tensions. While there is a call in industry and some policy circles for a more technical, apolitical approach to consultation, simply relying on expert analysis and scientific evidence does not address the underlying issues.
The article discusses how policy framing can shed light on the root causes of these disputes. Indigenous groups tend to frame consultation as a political issue, emphasizing empowerment and autonomy. Government frames it as a legal matter focused on meeting court requirements, while industry frames it as an economic concern, aiming to reduce business risks. These divergent frames result in different priorities and understandings.
To resolve these conflicts and improve relations, there is a need for frame-reflective consultation and engagement practices that acknowledge and bridge these differing perspectives. This is crucial for the future of resource development in Canada, reconciliation with
Indigenous Peoples, and sustainable economic growth.
https://www.policyschool.ca/wp-
content/uploads/2019/07/Indigenous-Consultation-Boyd-
Lorefice-final2.pdf
Current Dynamics (25%): 2.5 page
Detail the nature of consultation that took place between the business stakeholders of the
Trans Mountain Pipeline and Indigenous communities.
The Federal Court of Appeal in Canada recently dealt a blow to the approval of the Trans Mountain pipeline expansion project. This decision marked the second time in two years that a major pipeline project faced legal challenges,
with the Northern Gateway project meeting a similar fate earlier. The court's ruling centered on two key issues: the government's failure to adequately consult Indigenous groups and the National Energy Board's (NEB) exclusion of marine traffic from the project's environmental assessment.
The consultation process for the Trans Mountain project consisted of four phases. During the first phase, Trans Mountain engaged with over 130 Indigenous communities, leading to 43 Indigenous groups supporting the project through impact-benefit agreements. The second phase involved the NEB hearings, which included 131 Indigenous communities and resulted in the NEB recommending project approval with 157 conditions, many of which addressed Indigenous concerns.
The third phase saw federal representatives, including cabinet ministers, directly engage with 117 Indigenous communities to address their outstanding concerns. The government had initiated this phase to rectify deficiencies in the consultation process experienced during the Northern Gateway project. However, the Court found that, despite improvements compared to the previous project, the government failed to meet its duty to consult during Phase III for two main reasons.
First, the government wrongly informed Indigenous communities that it couldn't impose additional conditions on the project beyond those recommended by the NEB. The Court clarified that the government indeed had the authority to impose additional conditions, as confirmed in the Northern Gateway decision.
Second, the Court determined that federal officials did not engage in
meaningful dialogue with Indigenous communities during Phase III. Instead, they reported discussions to the Cabinet without offering specific accommodation measures in advance of the final decision.
The Court's decision triggered significant political consequences, with Alberta's Premier Rachel Notley withdrawing from the federal climate plan in response. The federal government, which had committed to purchasing the Trans Mountain pipeline to ensure its completion, also faced a political dilemma.
The duty to consult Indigenous groups should not amount to a veto over projects. It's noteworthy that this is the second time in two years that a government failed to meet its duty to consult regarding a major pipeline project, despite their strong support for these projects.
One key issue contributing to these failures is the legal uncertainty surrounding the duty to consult. Courts have struggled to adapt this duty to projects with geographically dispersed effects, such as pipelines, as opposed to localized projects.
The Court criticized the government for primarily using face-to-face meetings and interactions to gather information about Indigenous concerns and solutions. While this information was shared with the Cabinet through the Crown Consultation Report, the Court argued that meaningful consultation should involve two-way dialogue between Indigenous groups and government decision-makers.
However, for complex projects affecting numerous Indigenous groups simultaneously, like pipelines, this ideal is often impractical. Different groups may have diverse concerns and impacts, making it challenging to engage in continuous bilateral discussions. Moreover, delays in the consultation process can render a project unprofitable, effectively allowing a consultation right to become a veto.
The Court's vision of responsive and ongoing dialogue is admirable, but it may not be feasible for projects involving multiple Indigenous groups. This complexity and the need to consider various aspects can lead the government to rely on bureaucratic processes to gather
and assess information. This, in turn, may prevent the commitment to specific accommodations before the final decision.
In conclusion, the Federal Court of Appeal's ruling in the Trans Mountain case highlights the ongoing challenges surrounding Indigenous consultation in major pipeline projects. It underscores
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the need for a more flexible and practical approach to consultation, especially for projects with widespread impacts and numerous stakeholders. Balancing the rights and concerns of Indigenous groups with the economic interests of the country remains a complex and evolving issue.
https://www.fraserinstitute.org/blogs/trans-mountain-and-the-problem-with-pipeline-consultation-in-canada
Discuss the various positions of different Indigenous groups: Were there differing opinions
within and among Indigenous communities regarding the pipeline?
The Trans Mountain pipeline project affects the lands of 133 Indigenous and
Métis groups. These groups have different opinions about the project. Some
Indigenous nations and groups are okay with the pipeline and even have
agreements with the company. Some want to support it but want a better
deal. However, there are others who really don't like the pipeline and didn't
agree to it. In fact, some of these groups took the government to court to
stop the project, and they won. These groups are Tsleil Waututh, Squamish,
Coldwater, Stó:lo, Secwepemc, and Upper Nicola Band. The Tsleil Waututh
Nation is even planning to take more legal action after the government
approved the pipeline again in 2019.
https://cases.open.ubc.ca/trans-mountain-pipeline-expansion-project/
https://cases.open.ubc.ca/trans-mountain-pipeline-expansion-project/#cite_ref-_10_15-9
Challenges & Opportunities (20%): 2 page
Identify and explain key challenges faced by Indigenous communities in the consultation
process for the Trans Mountain Pipeline.
In Canada, there was a consultation process with Indigenous groups regarding the Trans Mountain expansion project, which had four phases. However, this process faced criticism, with Indigenous claimants arguing that
it was imposed without their input, lacked proper funding, and the National Energy Board (NEB) process was inadequate. The Federal Court of Appeals
ruled that the consultation process could be sufficient if done properly, based
on previous cases.
In 2018, the Tsleil-Waututh Nation and other Indigenous groups took Canada to court over concerns that the consultation was insufficient, especially during Phase 3. The court found that Canada did not fulfill its duty to consult meaningfully with Indigenous people. It concluded that the government didn't adequately address Indigenous concerns, and it incorrectly stated that it couldn't impose additional conditions on the project. As a result, the court overturned the government's approval of the pipeline expansion project.
This case highlights the importance of genuinely involving Indigenous communities in consultation processes and addressing their concerns properly.
Trans Mountain Pipeline Expansion Project | Open Case Studies (ubc.ca)
Discuss any opportunities or benefits that were presented to the Indigenous communities as
part of the project.
The Trans Mountain project aims to provide several benefits to Indigenous communities, which include:
1.
Employment and Training:
The project anticipates the creation of a significant number of jobs during construction and operation phases. Indigenous People are encouraged to secure employment opportunities
and enhance their skills through a training program. This not only allows them to work on the project but also in various work environments.
2.
Mutual Benefit Agreements (MBAs):
Trans Mountain has entered into confidential agreements with Indigenous communities. These agreements establish long-term relationships and provide various benefits, such as education, job training, skills development, business opportunities, and improved community services and infrastructure.
3.
Economic Opportunities:
The project seeks to support Indigenous businesses by identifying procurement opportunities and working closely with these businesses to understand their interests, capacity, and capabilities. This includes providing feedback on joint venture partner selection, offering education and training, and supporting the procurement cycle.
4.
Commercial Agreements:
The project aims to create mutually beneficial, long-term relationships with Indigenous communities. These
agreements can encompass a range of benefits, including skills enhancement, business opportunities, and improved community services and infrastructure.
5.
Procurement Opportunities:
Trans Mountain's Indigenous Procurement Policy aims to maximize economic opportunities for Indigenous communities while ensuring safety, quality, cost-
effectiveness, and adherence to schedules. This involves identifying procurement opportunities, working with Indigenous businesses, providing feedback, and supporting the contracting and procurement cycle.
6.
Database for Indigenous Businesses:
Trans Mountain has developed a database to collect information about Indigenous businesses offering services or products relevant to the project's construction and operation. Indigenous businesses are encouraged to register their interest in the database, creating opportunities for contracting, joint ventures, employment, and training in various project
phases.
These benefits are intended to support Indigenous communities, create economic opportunities, and foster long-term prosperity while ensuring that the project is conducted safely, responsibly, and sustainably.
https://www.transmountain.com/indigenous-benefits
Analysis (15%): 1.5 page
Delve deeper into the process of gaining Indigenous consent for the pipeline: Were there any
specific agreements, compromises, or refusals?
Analyze the outcomes: Were the terms of agreements honored? Were there any breaches or
contentions after the project began?
Recommendations & Reflection (5%): 0.5 page
Reflecting on the Trans Mountain Pipeline scenario, suggest at least two strategies or
protocols for better consultation and collaboration between business enterprises and
Indigenous communities in future projects.
Consider the balance between economic development and Indigenous rights, autonomy, and
environmental concerns.
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