Canada set to flout UNDRIP in Kinder Morgan purchase

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Justin Trudeau’s Liberal government risks sparking a constitutional crisis with First Nations over its $4.5 billion purchase of Kinder Morgan’s controversial Trans Mountain Expansion pipeline project.

The controversial 987-kilometre pipeline expansion from Edmonton to a saltwater port in Burnaby, BC, will increase bitumen exports by 300,000 barrels per day. The project has sparked a face off between the New Democratic governments of Alberta and British Columbia.

Critics in BC worry about the seven-fold increase in Aframax class tankers travelling through the ecologically sensitive Burrard Inlet and Fraser River estuary. Tanker traffic will increase from five tankers per month to 34 in an area that is home to over a million sea and shore birds including 30% of the world’s snow geese population. The Fraser River is also North America’s largest salmon-producing river.

Now, however, the federal government now risks breaching its commitment to the United Nations’ Declaration of the Rights of Indigenous Peoples, says Judy Wilson, the Chief of the Union of British Columbia Indigenous Chiefs (UBCIC).

“A highly troubling intrusion” was how BC Environment Minister George Heyman characterized Trudeau’s declaration that Kinder Morgan’s Trans Mountain Expansion Project (TMEP) was in the “national interest,” saying it undermined a province’s right to enforce its own permits, regulations and interests. For BC’s First Nations, Kinder Morgan’s so-called Stakeholder Engagement Process failed to recognize First Nations tribal rights.

“We weren’t stakeholders,” Chief Wilson told the Nation. The environmental assessment and National Energy Board reviews of the project were “narrow reviews,” she added. “These processes do not address tribal rights or their issues.”

According to Wilson, Kinder Morgan’s Indigenous Advisory Committee became a platform to disperse $64 million to First Nations bands in a “divide and conquer” strategy. Wilson said that council chiefs were unable to sign for their territory, a major issue that she had discussed with Kinder Morgan CEO Steven Kean, she added.

Kinder Morgan’s media-relations representatives did not respond to two Nation requests to discuss the TMEP.

The issue of Impact and Benefits Agreements will now become critical with the federal government’s decision to intercede. If the government wishes to achieve the objective of 100% consent – only one-third of BC’s First Nations have accepted the project – Chief Wilson stressed that a collective input would be required with a proper environmental review process.

Wilson says Kinder Morgan misrepresented the company’s Indigenous Advisory Committee. “We did not participate but if you did not participate, Kinder Morgan say we were consulted,” she said.

The requirement for consultation stems from a Supreme Court ruling that imposed a duty to consult on companies working in Indigenous territories. In 2007, the Inter-American Human Rights Commission declared that states must obtain free, prior, informed consent (FPIC) according to Indigenous people’s customs and traditions, and that “mere consultation” is not sufficient.

The FPIC standard will put to the test Justin Trudeau’s 2015 election pledge to respect democracy, inclusiveness and evidence-based policy.

Indeed, Trudeau’s government looks set to flout the 2007 United Nations Declaration on the Rights of Indigenous Peoples, which declares the right of First Nations to the conservation and protection of their environment, and the productive capacity of its land.

“The government Canada elected is a very different government to the one they have now,” Eugene Kung, staff lawyer of West Coast Environmental Law, told the Nation. “The government is moving ahead as though 100% acceptance is not required. They are doubling down on a project without First Nations’ consent and this represents a further subsidy of Canada’s oil industry.”

While there is no Canadian legal requirement for 100% consent, “acceptance needs to be 100% complete to be 1% effective,” Kung said.

Kung stressed that a review of the TMEP needs to approach the issue of rights, especially as 14 legal challenges are pending.

The success of any one of these challenges would undermine the government’s stance. “Canada has placed that risk. We are looking more and more like a petrostate,” he concluded.

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