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

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Crews with Discovery Channel film as an Aggressive Towing driver moves a Grumman S2F Tracker aircraft around a 90-degree turn from its compound and onto the road on Saturday, Jan. 23, 2021. It was the “most difficult” part of the move for the airplane, one organizer said. (Jenna Hauck/ Chilliwack Progress)
VIDEO: Vintage military plane towed across Chilliwack over weekend

Grumman CP-121 Tracker’s eventual home the British Columbia Aviation Museum on Vancouver Island

The Abbotsford Tulip Festival is permanently closing, with plans to eventually set up in Armstrong, B.C. (Abbotsford News file photo)
Abbotsford Tulip Festival is closing, with plans to rebloom in Armstrong

Event organizer says pandemic and sale of land were factors in decision

Cultus Lake’s Reece Howden on the course at Idre Fjäll in Sweden where he turned in another dominant World Cup ski cross performance. (Alpine Canada)
Cultus Lake skier Reece Howden stacks up World Cup wins in Sweden

Howden won two more long-distance ski cross races to expand his lead in the World Cup standings

(Ashley Wadhwani/Black Press Media)
Fraser East COVID-19 numbers plateau, rest of region trends down

Fraser East is sitting around 400 new COVID-19 cases each week

Applications are being accepted for the 2021 Student Ranger Program. (Screenshot/Province of BC)
VIDEO: Enjoy working outdoors all summer? Apply to become a student ranger

Parks including Cultus Lake Provincial Park will see a dozen student ranger teams in action in 2021

Rose Sawka, 91, waves to her son through the window of a care home in Prince Rupert in October. Residents of the care home received their first vaccine dose Jan. 20. (K-J Millar/The Northern View)
B.C. care home visitor access to expand by March, Dix says

Staff, residents, essential visitors top priorities for vaccine

Provincial health officer Dr. Bonnie Henry talk about the next steps in B.C.’s COVID-19 Immunization Plan during a press conference at Legislature in Victoria, B.C., on Friday, January 22, 2021. Two more cases of the COVID-19 strain first identified in South Africa have been diagnosed in British Columbia, bringing the total to three as of Jan. 16.THE CANADIAN PRESS/Chad Hipolito
B.C. now has three cases of South African COVID-19 variant, six of U.K. strain

Both variants are thought to spread faster than earlier strains

Rodney and Ekaterina Baker in an undated photo from social media. The couple has been ticketed and charged under the Yukon’s <em>Civil Emergency Measures Act</em> for breaking isolation requirements in order to sneak into a vaccine clinic and receive Moderna vaccine doses in Beaver Creek. (Facebook/Submitted)
Great Canadian Gaming CEO resigns after being accused of sneaking into Yukon for vaccine

Rod Baker and Ekaterina Baker were charged with two CEMA violations each

Police discovered a makeshift nightclub in a Vancouver apartment on Jan. 23, 2021, and say it wasn’t the first time this month officers have been called to the unit over social gathering concerns. (Phil McLachlan - Capital News)
Doorman of makeshift ‘booze-can’ in Vancouver apartment fined; police look to court order

This marks the fourth complaint about social gatherings inside the apartment in January

A Kelowna couple welcomed their Nooner baby in December. (Flytographer)
Kelowna couple welcomes baby girl from Hotel Zed Nooner campaign

Nicole and Alex will now have 18 years of free stays at the hotel

Kyrell Sopotyk was drafted by the Kamloops Blazers in 2016 and played two seasons with the Western Hockey League club. (Photograph By ALLEN DOUGLAS/KTW)
Kamloops Blazer paralyzed in snowboarding accident sparks fundraiser for family

As of Jan. 24, more than $68,000 had been raised to help Kamloops Blazers’ forward Kyrell Sopotyk

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

(Pixhere photo)
B.C. dentists argue for COVID-19 vaccine priority after ‘disappointing’ exclusion from plan

Vaccines are essential for dentists as patients cannot wear masks during treatment, argues BCDA

Most Read