Indigenous resistance, title make Trans Mountain pipeline extension ‘untenable,’ says economist - APTN NewsAPTN News

Indigenous resistance, title make Trans Mountain pipeline extension ‘untenable,’ says economist

Justin Brake
The Trans Mountain pipeline expansion is a high-risk investment for Canada and any future financial backers because it runs through unceded Indigenous lands, says one economist.

D.T. Cochrane, an economic researcher with the Indigenous Network on Economies and Trade, says the Texas oil giant Kinder Morgan’s April decision to suspend non-essential spending and the federal government’s subsequent nationalization of the controversial project are either ignorant to, or minimize, legal and financial risks that make the project “completely untenable.”

Cochrane says while discussion of the Trans Mountain controversy has centred on financial risk associated with legal and jurisdictional disputes between the province of British Columbia and the federal government, the project’s greatest financial threat is the risk associated with running the pipeline through unceded Indigenous lands.

“Kinder Morgan was always very careful to place all of the uncertainty on to the province [of B.C.], when really the uncertainty stems from the Indigenous jurisdiction that exists,” he said. “It was a question that Kinder Morgan either seemed ignorant of or unwilling to address.”

Cochrane says Canada’s $4.5-billion purchase of the project – which by some estimates could cost up to $15 billion more by completion – is a “perfect example of the socialization of risk” and means associated risks are now “borne by the Canadian government and…all of the citizens of Canada.”

But the feds have indicated Canada will shop the pipeline to private sector investors, and hope their buyout of Kinder Morgan’s assets will instill investor confidence.

Nicole Schabus, an assistant law professor at Thompson Rivers University in Kamloops, says while about half the Trans Mountain pipeline route crosses through Secwepemcul’ecw – the unceded territory of the Secwepemc people – Canada has never obtained their free, prior and informed consent.

She says when Kinder Morgan suspended non-essential spending they pointed to the province of B.C. for the hold-up.

“But the biggest uncertainty, legal and economic, comes from Indigenous peoples,” Schabus said.

The Trans Mountain pipeline was built in 1953, at a time when Indigenous people couldn’t legally organize around the question of land title and jurisdiction, Schabus explains.

Since then multiple Supreme Court of Canada decisions have strengthened Indigenous Peoples’ land rights, title and jurisdiction in decision-making processes about what happens on their unceded territories where no treaties exist that give title to the Crown.

At least four Secwepemc First Nations along the pipeline route have signed onto the project, but Schabus says Aboriginal title and jurisdiction belong to the Secwepemc people themselves – not the bands established under Canada’s Indian Act – and the people are the “proper rights holders.”

Canada and any potential investors’ biggest risk, Schabus says, “is the failure to recognize Aboriginal title because Aboriginal title has been recognized on the broader territorial concept, including by the Supreme Court of Canada.”

Cochrane says the feds and Kinder Morgan “are doing everything they [can] to sidestep the real issue” of Indigenous rights and title.

He says that, coupled with widespread support from Indigenous leaders and promises from Secwepemc grassroots people and Indigenous and non-Indigenous allies in B.C. and across Canada to resist the pipeline expansion, makes the project’s “unquantifiable risk” the “death for any potential asset.”

“If you cannot assess the risk of an asset, you cannot price an asset – so how could investors possibly back that asset?”

Land defender Kanahus Manuel says the Secwpemc-led Tiny House Warriors initiative is not a protest but an assertion of their Indigenous rights and jurisdiction.

Kanahus Manuel, a Secwepemc land defender who has called Canada’s purchase of the Trans Mountain pipeline a “declaration of war” against her people, tells APTN News that coverage of the controversy has largely ignored the issue of Secwepemc rights and sovereignty.

“This is serious because we are such an endangered population here; we cannot exist as an Indigenous people without a homeland, without a land base,” she says. “Our culture, our language — everything flows from the land. We can’t separate it.”

On June 1, B.C. Supreme Court Justice Kenneth Affleck granted Kinder Morgan’s request to expand an existing injunction to cover “any other project or operations site of Trans Mountain or its affiliates, contractors, or subcontractors” beyond the already court-protected Westridge Marine and Burnaby Terminals.

Manuel says enforcement of the injunction in Secwepemcul’ecw- namely if authorities arrest or physically remove Secwepemc people from their lands as they attempt to defend their Indigenous rights and title – would be an act of genocide.

“It is committing genocide because they have [already] forcefully removed us off of our territories on to the reservations,” she explains. “But we already know our inherent rights, and our rights and our title exist far beyond the reservation borders.”

Manuel says injunctions such as the one granted to Kinder Morgan favour corporate interests over Indigenous rights that are protected under international law.

“One of the tests [in granting an injunction] is the balance of convenience,” she explains. “Who is going to lose the most if this project continues? And they put in a monetary value and calculation of how much the company will lose [versus] Indigenous people.

“They don’t take into calculation the value of all those tens of thousands of years that we invested: all of our culture and our language and every being that comes from that land, our ancestors’ blood and bones that remain in that land. They don’t take that into consideration in that balance of convenience test, because it’s settler colonial courts.”

Land defender Kanahus Manuel (centre) and Secwepemc people and allies have vowed to defend unceded Secwepemc territory against the Trans Mountain pipeline extension. Some say Secwepemc title and jurisdiction make the controversial project a risky investment.

Manuel says Secwepemc people “are not to be included in a blanket injunction of regular civilians.

“That’s not who we are — we are a distinct nation, and we have rights and we have title and we have nationhood that we’re standing on.”

Cochrane says the “huge possibility of a massive on-the-ground physical resistance between the government and the Indigenous land defenders and their non-Indigenous allies” could mean that future investors in the pipeline “end up getting mixed into what is an extremely brutal longstanding colonial relationship with all of the messiness that comes along with that.”

He says investors would face “reputational risks” in addition to financial risks, and they “need to start looking at every single resource development project taking place within the borders of Canada and asking whether or not there are unresolved jurisdictional questions, because likely there are.

“Until those questions are addressed I think every sort of extractive undertaking should be suspect from the bottom line perspective of the investors,” he adds.

Manuel says the Tiny House Warriors project she helped initiate last year, where Secwepemc people and allies have been building small, mobile dwellings on what would be the pipeline extension route through Secwepemcul’ecw, is not a protest, but an assertion of Indigenous rights and jurisdiction.

“When we build our homes and our village sites on our lands – it’s something different. This is not a protest camp,” she explains. “We have inherent and ancient roots to our lands.

“We are not Canadian civilians. We are Indigenous people in our own homelands.”

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24 Responses to “Indigenous resistance, title make Trans Mountain pipeline extension ‘untenable,’ says economist”

    Ian June 11, 2018 at 7:57 pm #

    Looks like there’s plenty of non Indigenous land there in the map displayed here. I’m sure there’s a way around if going through is going to be objected to by the Indigenous land owners.

    Allen Auger June 11, 2018 at 1:17 am #

    I for One am glad the Indigenous Peoples of BC are standing up for their beliefs and Territory!

    George Rammell June 10, 2018 at 2:02 am #

    Wonderful article. Justin & Rachel should dig up the pipe, recycle the metal and fill in the hole. The pieline expansion isn’t worth the environmental & financial risk.

    Eddie Valiant June 9, 2018 at 11:34 pm #

    “We are not Canadian civilians”.
    In that case, don’t accept Canadian tax money and instead create your own country.

      Ian June 11, 2018 at 7:54 pm #

      They had their own country and the Indian Act, drafted by the Crown, has had them exchange that land for what now amounts to Canadian tax dollars.

      Chris Dewolfe June 16, 2018 at 3:51 pm #

      The money they receive is guaranteed by Royal Proclamation for eternity.

    Charlie June 9, 2018 at 10:39 pm #

    Though indigenous people have not been treated with the respect they maybe deserve, the rights of Albertans to avail of their resources is tantamount ,and they should be allowed the means to transport its oil ,after all the oil will one day run out and at that time the pipeline could always be taken down.

    Dale Hunter June 9, 2018 at 10:28 pm #

    First Nations people of BC have more allies than they know. I don’t want to see another North Dakota but unless the Canadian government backs down and recognizes the rights of First Nations it will happen.

    Winston June 9, 2018 at 10:26 pm #

    We are all Canadians first and foremost. A province of Our country need a pathway through these lands to transport its product to all available markets,for the wellbeing and benefit of all our citizens. There is already an existing pipeline in this same path,this pipeline at some point in the future will no longer be needed and it will be returned to its natural habitat. We must make this pipeline work for the good of all Canadians!

    Mary McNamara June 9, 2018 at 6:15 pm #

    I’m part Cherokee and I was at Standing Rock and I know how evil the oil companies can be I have seen the documentation of what happened to the Georgia Cherokees and how they were illegally pulled off their land and out of their houses I will stand with you as many of us will Aho

    Norm Dill June 9, 2018 at 6:00 pm #

    Since Kinder had a number of deal with FN groups a number of your assertions seem unlikely.

      Julian Gosper June 14, 2018 at 11:20 pm #

      Kinder’s consultation with known “trouble maker” bands was a mere 40 minute meet and greet and walk through of the proposed agreement… totally a joke as they knew in advance there was no way these people would sell-out their environment for some $$$ Might want to check the real facts behind the negotiation… you’re being fooled if you think this was a fair consultation.

    Ken Robertson June 9, 2018 at 4:11 pm #

    I doubt if any remaining unresolved indigenous land claims were considered by the Federal or Alberta governments. They entered into this risky dispute because they had their backs up against the wall. Only buying out this risky venture ensured its journey forward. These 2 groups are using taxpayer money & the power of law to move any opposition out of the way. However, there is one group that can not be bought or sacrificed for profit. Those citizens who who want to guarantee protection of Mother Earth in all its forms, Something those in power vaguely consider or try to put a price on. The time has finally come on this planet to change our destructive ways.

    Denis Hughes June 9, 2018 at 1:47 pm #

    So there is still hope. Thank you.

    Luigi Civitelli June 9, 2018 at 1:40 pm #

    You are not gaining any friends from your Canadian brothers and sisters by objecting to any and all pipeline construction unless there is another government cheque at the end of it. Land for use in the best interest of our country, is/should be expropriated with fair, and just compensation and based on the same criteria applied as in every other area of Canada. You may also have the option to invest and claim part ownership of that infrastructure. It’s time to move forward.

      Turcotte Jean-Pierre June 16, 2018 at 8:18 pm #

      You state the absolute totally ignorant uninformed truth of it all…unless you are personally willing to drink your share of this toxic pollutant. First and foremost: IT’S NOT OIL AND IT CANNOT BE CLEANED UP – IT’S DILUTED BITUMEN AND CONDENSATE. Second: a spill in the Fraser watershed risks the entire salmon fisheries from BC’s largest river. Third: you are being lied to by the self-serving and obfuscating high priests of economy. Fourth: IT IS NOT IN THE “NATIONAL INTEREST”…you are deceiving yourself for believing that.

    Neil McCubin June 9, 2018 at 12:02 pm #

    Ms. Manuel asserts that she is not a Canadian civilian. Presumably she feels she is not subject to Canadian laws.
    If so, she should reject all education health care welfare and any financial support from Canadian taxpayers.
    The indigenous peoples had a raw deal in many ways from our colonial ancestors but that points to the need for intelligent cooperation in the 21st century not confrontation.
    I wonder what proportion of the peoples she claims to represent would be pleased if all residents of her claimed territory left and kept all non-indigenous goods and services out of the territory

      Angela June 16, 2018 at 6:42 pm #

      She does reject it all, did you read the article about her and how she has not registered her children and does not collect child benefits? How she does not collect anything from the Canadian government? Google it.

      Bernard Hink June 19, 2018 at 12:39 am #

      We are First Nations, had a thriving healthy livelyhood here in Canada. Any pilgrim must know that that we have adapted to their laws and we still can live it in a healthier way then destructive leaks, spills and blow ups. Just too damn destructive

    Susanna Dokkie-McDonald June 9, 2018 at 9:25 am #

    Kinder Morgan made arrests until Elizabeth May and Mr. Kennie were arrested. The following weekend we had all First Nations chiefs, including Grand Chief Stewart Philips. They were all left alone as if it was a can of worms Kinder Morgan did not want to open. No one was arrested that weekend. No one. But the folliwing weekend it started up again with arrests.
    Yup. Kinder Morgan knew this was an untenable situation because they knew about unceded lands.
    Justin Trudeau knows this well but chooses to competely ignore unceded rights. Arrogant to the point of not wanting to be told by the Supreme Court of Canada that he has no jurisdiction on land that does not belong to the Canadian Confederation. That’s why Morneau said he won’t be going to the courts to prove jurisdiction. He knows that jurisdiction is with First Nations all the way.

    Mark June 9, 2018 at 3:07 am #

    All very interesting read but consultation does not mean consent. Rule of law is meaningful consultation. But this could be very interesting because your leaders have made agreements with kinder Morgan. It will be your own people enforcing the injection. Should be very fun to watch.

    Chris Sommers June 9, 2018 at 12:17 am #

    The socio economic well-being of thirty five million people needs to be considered relative to that of 2000 or so. We are all Canadian citizens and will all benefit from the income generated by the pipeline and the bitumen that flows through it.

    The day all Canadians with treaty rights agree to cease using oil and oil by-products, their right to dictate national economic policy may carry some weight – much like those on the picket lines and chained to the pipeline at its terminus in Burnaby.

      Turcotte Jean-Pierre June 16, 2018 at 8:16 pm #

      You state the absolute totally ignorant uninformed truth of it all…unless you are personally willing to drink your share of this toxic pollutant. First and foremost: IT’S NOT OIL AND IT CANNOT BE CLEANED UP – IT’S DILUTED BITUMEN AND CONDENSATE. Second: a spill in the Fraser watershed RISKS THE ENTIRE SALMON FISHERIES FROM BC’S LARGEST RIVER. Third: you are being lied to by the self-serving and obfuscating high priests of economy. Fourth: IT IS NOT IN THE “NATIONAL INTEREST”…you are deceiving yourself for believing that.

    Janet Alderton June 8, 2018 at 10:18 pm #

    I respect the rights of the Secwepemc people to their lands.