November 2018

Some local First Nations leaders fear the next rounds of “consultation” around the Trans Mountain pipeline may be even worse.

GWEN UNDERWOOD, a member of the Tsawout First Nation, chokes back her emotions as she leafs through a binder that contains some of the voluminous materials used to assess and fight the Trans Mountain Expansion Project (TMEP) between 2014-2016 for her community.

In her capacity as then-lands-manager, it was her task to assemble the legal and scientific team, and the traditional knowledge keepers, to help review the proposal and assess the impacts to “existing Aboriginal and treaty rights.”

In that binder is a picture of her grandmother and great-grandfather and the map of SENĆOTEN place names describing the wealth of sea life that has fed her community for millennia throughout the Saanich Peninsula and Salish Sea. She stops at his photograph and says, “I believe our ancestors were with us too,” then pauses; “That’s what makes what is happening now so hard.”

Gwen Underwood (left) and Belinda Claxton overlooking the Salish Sea

What is happening now is that Ottawa—after losing the court challenge by Tsleil-Waututh and other First Nations for not considering Aboriginal concerns—is returning to “consult” again. Trudeau directed the National Energy Board (NEB) on September 26 to complete what he is calling the “reconsideration process,” with a report due February 22, 2019. The NEB provided only five working days to amend the scope of the environmental assessment to be sent by fax by October 3 (their fax machines were jammed with protest complaints).

Many legal experts predict that the timeline is so unrealistic and egregious that it will lead to new court challenges.

This time round, Gwen Underwood will not be on the Band’s reviewing committee. In 2016, Tsawout were poised to join the other First Nations in the court challenge, but a new council was elected and they pulled out. “Tsawout did an excellent job on their report submissions. We had the strongest legal case and RAVEN said that they could fund part of it. But our new council said we can’t afford it,” said Underwood. The council is now divided on the issue, and Underwood has resigned from her position. The stress has driven her to a new job with a non-profit, but she is worried for her community’s future.

“The government still is not obligated to listen,” notes Underwood; “so my question is: Why are the feds trying again? First Nations still cannot veto the decision.” She fears “that some might see it as ‘it is going to happen anyway so they might as well get something out of it.’”

Underwood and I are meeting at the Tsawout Reserve with another member of the original review committee, elder Belinda Claxton, who tells me: “The government tries to starve First Nations out. They wait for people on council who will sign on. It ultimately gets down to divide- and-conquer mentality.”

The original committee also included Hereditary Chief Eric Pelkey. For 30 years he has held positions, both elected and staff for the Band, including most recently the position of Douglas Treaty Officer. But he was dismissed in 2015, a decision he is challenging in the courts as unfair. He believes his outspokenness on the Trans Mountain pipeline could have been a factor. “That is what is so maddening in terms of those type of tactics. I think that we have experienced it a number of times in our territory where we go out and fight for our rights and title, and then Canada or BC goes behind our backs and offers resources to come to some kind of side agreement and undercuts negotiations that we are trying to put forward. And that is the type of thing Trans Mountain seems to be doing all the way through the territories—undermine any kind of unity in terms of opposition to the pipeline.”

Hereditary Chief Eric Pelkey

Flipping through the binder and reading the briefings, it is apparent that Tsawout would have won alongside the other Nations had they gone ahead with the court challenge. They experienced the same litany of concerns. As Underwood notes: “We gave [NEB] a full list of our impacts and concerns backed up by our marine traditional use and scientific reports, and they didn’t address it. We asked about cumulative impacts and they didn’t address that. Climate change wasn’t even in the terms of reference. My brother Harvey Underwood’s submission talks about how important the orca are, and how once they start disappearing, we aren’t too far behind them. The federal government representative said: ‘Well they are dying anyway.’ That was his response; we have that recorded in our minutes. Everything we did, they didn’t address it.”

Pelkey adds, “The federal government had already made a decision—even before we made our submission to the National Energy Board—that the transport of dilbit in these ships was in the ‘best interest of Canada.’” Pelkey’s experience was that “the NEB decisions always fall on the side of the proponent. [The federal] government says NEB is flawed but they continue to use it.”

Underwood says the length and complexity of the process itself has worn down communities, forcing them to agree to the pipeline. “It is a completely overwhelming process. They sent us five boxes of binders and then we have information requests and you have to understand all the legal and scientific terms. How do councils cope if they don’t have the background or the time to review it? You realize how projects like this go under the radar, if they don’t have good scientific and traditional knowledge experts and a legal team.”

In order to hire the legal and scientific experts to do the studies, review the proposal, and argue the case, councils sign “capacity agreements” to receive funding for those purposes. These agreements are often misrepresented by some as agreements to support the pipeline, another tactic that confuses both the public and some members of the community. As Pelkey notes, “We said in our [capacity] agreement that just because we were accepting funds to do the independent research, we were not obliged to give them a thumbs-up to increased tanker traffic in our territory. I personally spoke out against the pipeline because I didn’t want even myself as hereditary leadership to be seen to be bought off by any kind of…agreement.”

The binding agreements are “Benefit Agreements”: once accepted, they have to be paid back if a community changes its mind about increased tanker traffic under a new council (they change every two years). The benefit agreement offered by Kinder Morgan in July of 2015 to Tsawout was a $3-million payout over 50 years. The Tsawout community members rejected this offer outright. Claxton, Underwood and Pelkey all fear that this offer might be reopened to the new council, who might be more open to the prospect for a variety of reasons, including the costs to Tsawout council for the process to date which have already put them in debt.

The reason councils find themselves in debt, despite capacity agreement funding, is that the agreements do not necessarily cover the unpredictable costs of the process. As Underwood tells me, “Even with capacity agreements, there wasn’t enough to cover the changes in strategy by Trans Mountain or through Intervenor Information Requests (IIRs) that were thrown at us. We ended up spending a lot of our own money because they changed some of their witnesses. Canada should provide the capacity for us to address any changes, but they wouldn’t allow it.”

One such Intervenor Information Request reads as follows: “We are seeking feedback from you on the completeness and accuracy of the concerns and issues you have raised and your views on concerns and issues that may have not yet been addressed by proposed mitigation measures or proponent commitments to this point in the process.” These kinds of questions take hours of professional time—first to determine what they are actually asking for, and then to answer them adequately. How can the accuracy of a concern about impacts of dilbit spills to a traditional fishery be measured?

In his capacity as hereditary chief, Pelkey continues to speak out against the pipeline. Although the courts have determined that there is a requirement to consult traditional governance leaders, Kinder Morgan made no effort to approach Pelkey, or other hereditary chiefs of the W̱SÁNEĆ Nation, who have responsibilities for the Salish Sea, Gulf Islands and Saanich Peninsula and live in the five reserves of Tsawout, Tsecum, Tsartlip, Pauquachin and Malahat. Kinder Morgan only approached the elected councils of each Band. Malahat and Pauquachin signed a benefit agreement. Claxton states, “It is important for our full council to stand up for our people, recognize our rights and honour our W̱SÁNEĆ way of life in our traditional waters and territory.”

According to Pelkey, this is the kind of conflict that is a direct result of the Indian Act governance model. When Tsawout successfully challenged the development of the Saanichton Marina in a court case years ago on the basis of Douglas Treaty rights and aboriginal rights, their lawyers advised council to put their hereditary leadership up front in terms of rights and actions on behalf of the whole WSÁNEĆ Nation. According to Pelkey, that hasn’t happened yet on the pipeline project. But it might now. Pelkey notes, “I believe that the time is right for that type of unified position of the entire W̱SÁNEĆ Nation. The main problem is that the Indian Act divided us up and created these little kingdoms. The W̱SÁNEĆ Nation includes all of us.”

Briony Penn is currently working with Xenaksiala elder, Cecil Paul, Wa’xaid, on Following the Good River, due out in 2019. She is also the author of the prize-winning The Real Thing: The Natural History of Ian McTaggart Cowan.