First Nations, land and water at greater risk after Supreme Court denies leave to appeal

On July 2, 2020, in a ruling with no explanation provided, the Supreme Court of Canada denied the Squamish Nation, the Tsleil-Waututh Nation and the Coldwater Indian Band leave to appeal an earlier federal court decision that found Cabinet’s approval to proceed with the Trans-Mountain pipeline expansion project was reasonable.

The Nations challenged the consultation process, effectively asking: is consultation adequate where the owner of a project, who also has a fiduciary duty to act in the best interests of the Nations impacted, performs the consultation, then assesses the adequacy of its own process? The Canadian government purchased the pipeline from Kinder Morgan in 2018.

As Syeta’ xtn (Chris Lewis), Squamish Nation Spokesperson and Councillor said:

“Indigenous peoples have a constitutional right to meaningful consultation and accommodation, and the courts must scrutinize that process. The Federal Court of Appeal’s decision to let the federal government be the judge and jury of its own consultation efforts was flawed in so many ways, and we are shocked to learn that the Supreme Court of Canada has failed to recognize that. Though this particular challenge is now over, we will continue to exercise all available options to hold the government to a higher standard, both for this project and for future projects in our territories.”

Also in response to the decision, Tsleil-Waututh Chief Leah George-Wilson said, “This case is about more than a risky pipeline and tanker project; it is a major setback for reconciliation. It reduces consultation to a purely procedural requirement that will be a serious barrier to reconciliation.”

Coldwater Indian Band Chief Lee Spahan said, “We knew the chances of the SCC granting leave were slim, given the momentum of the project and the Federal Court’s finding that protection of our water can still take place in future routing decisions, but we felt we had to use every tool available to us.”

In the case of Coldwater Indian Band, they have worked tirelessly to highlight the risks posed to the precious freshwater aquifer upon which their community depends. For 90% of people on the reserve, the aquifer is the sole source of drinking water. The life of the river that runs through Coldwater, and the people that depend on it for fish and water, are at risk.

We, at Toronto350, stand with the Squamish Nation, the Tsleil-Waututh Nation and the Coldwater Indian Band in their fight to protect their rights, their lands, and their water. We are deeply concerned by the Supreme Court’s decision, including the implications for the duty to consult with Indigenous people, and the future of the lands and waters in these territories. The Trans Mountain Pipeline project continues to ride roughshod over Indigenous lands and rights in order to nearly triple the capacity of the existing pipeline to 890,000 barrels of tar sands oil per day, also highlighting the Canadian government’s failure to act on the climate crisis. The tremendous impact this will have on Indigenous people, the delicate ecosystems in the path of the pipeline, and the global climate cannot be ignored.

We call upon the Canadian, and all provincial governments, to adopt the United Nations Declaration on the Rights of Indigenous People into law. We further call upon these governments to honour their fiduciary obligations, to respect the true intent and spirit of the duty to consult, and to respect Aboriginal and Treaty Rights of Indigenous people in Canada.