And it completely undermines any alleged commitment to “reconciliation” with Indigenous peoples.
It’s not as if Prime Minister Justin Trudeau doesn’t understand the stakes. In mandate letters sent to each of his ministers in November 2015, he emphasized a renewed “nation-to-nation relationship, based on recognition, rights, respect, co-operation, and partnership.”
Trudeau also pledged that his government would “fully adopt and work to implement” the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which included the provision that “Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.”
That dream has been slowly dying ever since.
In July 2016, Justice Minister Jody Wilson-Raybould stated that UNDRIP was “unworkable.” That same month the federal government released permits for the controversial Site C dam in B.C., despite strong opposition from local First Nations. In late September First Nations launched legal challenges against the federal government’s approval of the Pacific Northwest LNG project in B.C. salmon habitat, stating the project violated Indigenous rights.
Today’s announcement appears the final nail in the reconciliation coffin.
There’s simply no way around it. Of the 120 First Nations consulted by Kinder Morgan, only 39 have issued letters of support for the project. The company has not secured the consent of two-thirds of potentially impacted Indigenous nations to go ahead with the project.
Tsleil-Waututh, Squamish and Musqueam First Nations have mounted considerable opposition to the project, including threats of legal action and Standing Rock-inspired blockades to prevent its construction.
Of course, there are many arguments deployed by governments and corporations to justify this neglect.
Canadian case law only requires “duty to consult and accommodate,” in contrast with the more robust “free, prior and informed consent” required in UNDRIP.
Federal decisions about pipelines are made based on the national “public interest,” which means they can technically ignore many local and regional concerns. The National Energy Board (NEB) and provincial environmental assessment agencies are meant to give objective reviews of projects without giving into the desires of “special interest groups.”
But those are the terms articulated by former primer minister Stephen Harper, a leader representing a political vision Trudeau was ostensibly elected to remedy.
Even Trudeau’s Justice Minister, Jody Wilson-Raybould argued it would be a misguided approach reminiscent of the former Conservative government for the federal government to advance the project under the banner of ‘national interest’ if it didn’t have First Nations consent and community support.
As Trudeau famously said: governments grant permits, communities grant permission.
The Kinder Morgan project was approved using an NEB process heavily criticized for having no cross-examination of evidence and failing to assess cumulative effects, marine oil spills and greenhouse gas emissions.
The ad-hoc review panel formed to fix that was riddled with alleged flaws including a lack of clarity in mandate, failing to reach out to participants, organizing meetings during the summer when many people were away and appointing a panel chair who had a previous business relationship with Kinder Morgan.
Even that panel recognized that approving Kinder Morgan should not happen without resolving the question of “how might Cabinet square approval of the Trans Mountain Pipeline with its commitment to reconciliation with First Nations and to the UNDRIP principles of ‘free, prior, and informed consent?’ ”
That question will not be answered.
Instead, the federal Liberals — with rhetorical support from Canada’s most powerful industry interests and the Alberta NDP, which also committed to implement UNDRIP — have continued a political mandate stretching back to John A. Macdonald and Stephen Harper, placing private interests over Canada’s explicit legal commitments to indigenous peoples.
The federal government is also doing so at a historic moment in Canada, after the release of Truth and Reconciliation Commission recommendations that put in stark relief the nation’s abuse of its indigenous peoples.
As the Commission put it: “Without truth, justice and healing, there can be no genuine reconciliation.”
The truth is that two-thirds of impacted Indigenous nations do not want the Kinder Morgan project threatening their lands and waters with potential oil spills, destroyed marine mammals and catastrophic climate change. This is a truth that our elected officials are aware of, but seem not to care about. Giant energy companies — many of which have lobbied the federal government hundreds of times since the federal election — have scored their long-awaited federal approval.
The federal government could have called off the review process until the reviews of the NEB, Canadian Environmental Assessment Agency and the Fisheries Act were completed. The Alberta NDP could have recognized that the oilsands can not be expanded further without the free, prior and informed consent of impacted Indigenous nations, choosing instead to clearly articulate to constituents and industry why it would not be petitioning for federal approval.
But despite all this, Indigenous nations do not back down.
What we’ve seen at Standing Rock, the Unist'ot'en Camp, Muskrat Falls and Elsipogtog is a new trend that will likely be bolstered by today’s announcement.
Canada could very well be on the verge of seeing blockades and protests with force that hasn’t been seen since the 1990s with Oka, Gustafsen Lake and Ipperwash. A new indigenous coalition created to fight fossil fuel expansion, the Treaty Alliance Against Tar Sands Expansion, now has over 100 Indigenous nations and organizations on its list of signatories.
Trudeau and Notley can pretend to care about many things: the economy, jobs, re-election. One thing they can no longer pretend to care about is “reconciliation.”
This is what colonialism looks like.