WE STAND HERE TOGETHER as Tsleil-Waututh people and we say ‘no.’ We say ‘no’ the risk is too great. Our obligation is not to oil. Our obligation is to our land, our water, our people, our life, our snəwayəɬ. According to our snəwayəɬ, our law, this project represents a risk that we the Tsleil-Waututh people, are not willing to take. – Oral Aboriginal traditional evidence given by Leah George-Wilson on October 16, 2014.
Tsleil-Waututh Nation (“TWN”)
The Tsleil-Waututh Nation (“TWN”) is a xʷəlməxʷ nation, within whose territory the Trans Mountain Expansion Project (“TMX”) has been approved. The TWN is opposed to the TMX Project. We have been opposed since the idea was first raised.
I am a member of TWN, which has a population of approx. 600 members with 350 living on TWN reserve land. The terminus of the TMX is across the Burrard Inlet from the TWN Indian Reserve #3 (“IR #3”). One could hit a 3 iron from where my parents live near the end of IR #3 to hit the Westridge Marine Terminal.
TWN Rights – The Duty to Consult and Accommodate
The TWN has the right to be consulted and accommodated, where necessary as the Supreme Court of Canada set out in Haida, Delgamuukw, Van der Peet; and Mikisew. The duty to consult and accommodate Aboriginal people arises when the Crown is considering actions or decisions that may affect an Aboriginal person’s Aboriginal or Treaty rights as set out in Marshall and Haida. This duty arises most often in the context of natural resource extraction such as mining, forestry, oil, and gas.
Sacred Trust Initiative
The TWN carried on its mandated work around the TMX by executing a few undertakings. One of which is the Sacred Trust Initiative – created by the TWN, acting as an arm of the TWN that is mandated to stop the proposed TMX. We prepared the TWN members who were part of the Sacred Trust in a ceremony to take our message to the First Nations along the pipeline corridor.
The TWN has also completed its own Environmental Assessment of the TMX, which was based on science and our Indigenous Law. We hired experts and commissioned a number of reports on oil spill response, trajectory, behavior, and impact on air quality, among others. The assessment sets out the reasons for the opposition of the TMX Project.
United Nations Declaration on the Rights of Indigenous Peoples
When our lawyers represented TWN in the Federal Court of Appeal, we held a ceremony to put protection upon them and prayers for work they were going to do for TWN because according to our Indigenous Law, ceremony is part of our preparation.
The TWN sat at tables in discussions with the Crown on the twinning of the TMX. We relied upon Canadian case law and our Constitutional Rights, along with the inherent right of TWN. In addition, we relied upon several articles from the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”), such as Article 18:
Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representation chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
As we participated in the NEB process in October 2014 in the first round of Phase III consultation, we held a ceremony with our community to give strength and ask for a good outcome based upon our Indigenous Law. The TWN sent Gabriel George, Sr., who laid out the oral history of the TWN, and me, who interpreted our Indigenous Law. In doing so, we relied upon the Article 11:
Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.
TWN did everything they were supposed to do, including submitting studies on oil spill response, the economics of the pipeline, among other documents on November 28, 2016. TWN also had the right to rely upon Articles 19:
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
The Governor in Council approved the TMX on November 29, 2016. The TWN sought leave to appeal the decision in the Federal Court of Appeal. Tsleil-Waututh Nation v. Canada (Attorney General) (“Tsleil-Waututh Nation”) decision was delivered August 30, 2018.
Canada Did Not Fulfill Its Duty to Consult
In Tsleil-Waututh Nation, it was found that Canada did not fulfill its duty to consult with and, if necessary accommodate the First Nations. The National Energy Board (“NEB”) was sent back to redo its Phase III consultation. The NEB would have to reconsider particular aspects of the consultation: the Project related shipping; the Species at Risk Act; and the NEB’s environmental assessment before a report could be put to the Governor in Council for a decision on approval.
December 2018 found TWN presenting once again to the NEB on the issues the FCA had determined: the shipping aspect of the project and the significance of whales, these whales, in particular are the Southern Resident Killer Whales (“SRKW”) and are protected by the Federal legislation, Species at Risk Act. TWN sent representatives Gabriel George, Sr. and me to lay out our private knowledge and experience of the significance of whales to the TWN community. Canada left the room as the TWN representatives presented.
The TWN also had a team that included leadership that sat at the table with Canada working through the ‘refresh’ consultation. It seemed similar to the original consultation. There was a lot of “we should agree to disagree” from Canada. Reconciliation is not agreeing to disagree; rather it is the sharing of ideas and the discussion that arises from differences; it is the work done to get to solutions.
The TWN also pressed to co-present any report that Canada would present to the Governor in Council. We were told that this was not possible. TWN also pressed to have a meeting with the Cabinet. This was also not possible.
In May, the TWN was able to get a meeting with 5 Cabinet Ministers for 60 minutes to explain why the TMX should not be approved. We presented maps and a short video to show why the TMX should not be built. We spoke passionately and answered all questions the Ministers put forward. We understand that this meeting was quite out of the ordinary and many were impressed that TWN received such a meeting.
As you know, on June 18, 2019, Prime Minister Trudeau approved the TMX. That same day, TWN and other First Nations vowed to seek leave to appeal, yet again.
It is disappointing and yet we knew it was likely that the pipeline would be re-approved. Many think that TWN should just resign itself to the pipeline being built. We, of course, have a different answer. We will continue to use our laws to uphold our obligations to our land and water.
Tsleil-Waututh Nation Fights On
Our fight against the pipeline is based on our Aboriginal Rights and Title as supported by our Indigenous Law. It is according to our law that we protect the environment and our territory. We have not been anti-development; in fact we are developers on our own. We are not anti-employment; in fact we have members that would like to see employment grow. We are, however, stewards of our territory. We have the duty, the obligation to ensure the safety of the land, water, SRKW and all wildlife. It is our responsibility – given to us by the Creator when we were placed upon this territory.
We’d also like you to know that there is no ‘foreign money’ funding our legal challenges. There have been some donations, mostly individuals; but largely the work is supported by the TWN’s own resources. It has been our community’s decision to protect our Rights and our territory. This commitment speaks to the obligation to the protection of the land and water, which is not up to any government to determine what risk the TWN takes on. TWN protects the territory for our people today, those who live among us as well as for those yet unborn. There may come a day when our protection isn’t sufficient. But that day is not today – so we continue to fight on.