Indigenous rights collide with $35B Western Canada pipeline expansion

Trans Mountain, the company that’s building the federal government-owned pipeline expansion from Alberta through B.C., says its project, which is billions of dollars over budget, is now 95 per cent complete.

The company hopes oil will start flowing within weeks.

Except there’s a problem.

Some residents of an Indigenous community are opposing construction on part of the pipeline, near Jacko Lake, B.C.

It’s sacred, they say.

“We don’t want (anything) disturbed around that lake. It is in our territory — on unceded territory,” says Carolyn Henry, an Indigenous elder representing the Stk’emlupsemc te Secwepemc Nation (known by its acronym, SSN), near Kamloops.

Henry is discussing Jacko Lake — known as Pípsell to the community — a small body of water considered sacred by the Nation.

This is the same Indigenous community which announced in 2021 that assisted by a ground-penetrating radar specialist, it had discovered “remains of 215 children” on the grounds of a former residential school.

“Since time immemorial (10,000 years+), cultural, spiritual and historical connection to the place that our Secwépemc Elders and Ancestors — and present and future generations — have with Pípsell identifies this place as a ‘cultural keystone place,’” the SSN says on its website.

“So, when you talk of Pípsell, and the sacredness of Pípsell, it comes from one of our … creation stories,” Jeanette Jules, an SSN Elder, explained at a Canada Energy Regulator hearing in September.

She said the area is replete with medicinal plants, and contains numerous ceremonial and prayer sites.

“They’re our cultural heritage treasures and they need to be look after,” Jules said.

Change in plans

Trans Mountain initially agreed to a costly, less-invasive method known as micro-drilling to dig under and around the lake to appease concerns expressed by some members of the community.

But in September, the company went before the Canada Energy Regulator to argue that its method was technically unfeasible and far too costly. The regulator sided with the company.

That ruling gave Trans Mountain the right to use a more disruptive method to build the pipeline next to the lake, which it is now doing.

The dispute involves only a 1.3-kilometre stretch — a tiny fraction of the 1,147-kilometre pipeline that winds from Edmonton to an ocean port in Burnaby, B.C.

Yet the controversy has caused a protracted dispute between some members of SSN and an oil giant intent on completing the pipeline to ship oil to lucrative overseas markets in Asia and beyond.

There are even divisions among members of the SSN community.

Henry says elders at SSN are not giving up, despite what she believes is tacit support for the pipeline among the Nation’s elected Chiefs and Council.

“This is what big companies do,” she told Global News. “They just walk all over you and expect you to take it. And we’re not going to take it.

“We will not back down.”

Hanging on to ‘ultimate power’ 

From a giant mining project in northern Ontario known as the Ring of Fire to the recently completed yet still-controversial Coastal GasLink fracked gas pipeline in northern B.C., Canada continues to struggle to find the sweet spot between resource development and securing free, prior and informed consent from Indigenous communities like Stk’emlupsemc te Secwepemc Nation.

You wouldn’t know it listening to Prime Minister Justin Trudeau, who has repeatedly emphasized his government’s commitment to reconciling with First Nations, Inuit and Metis Peoples.

But the legal system, says UBC law professor Gordon Christie, still has a long way to go before it meaningfully addresses the fundamental principle that Indigenous Peoples in Canada must grant free, prior and informed consent.

Despite the Charter of Rights and Freedoms existing for 30 years, “we have a pretty anachronistic, old-school system still,” Christie tells Global News.

The Canadian government, he says, talks a good talk about respecting Indigenous communities’ wishes when it comes to resource projects.

But it’s clear, Christie adds, that the Crown does not want to give up the supreme decision-making power it has enjoyed for 150 years.

It’s a power, he adds, that is built upon the “doctrine of discovery,” which allowed European explorers to steamroll over Indigenous rights and title to their own land.

“Right now, it seems pretty clear that the Crown, both federal and provincial Crowns, are trying to hang onto that ultimate power, trying to remain the ones that make the decision at the end of the day,” Christie says.

“They’re trying to find some middle ground that may not exist.”

‘Manufactured consent’ 

The Neskonlith Indian Band, a 50-kilometre drive up Highway 1 from Kamloops, never signed a mutual-benefit agreement with Trans Mountain, according to its former Chief, Kukpi7 (pronounced cook-pea) Judy Wilson.

Wilson says she has long felt that massive resource developments, with their promised millions in economic benefits, rarely materialize in the way that they are sold to communities.

When Wilson led Neskonlith, she rejected several proposals by Trans Mountain, she says, including a $600,000 “firefighting structural unit” for the community.

For her, it wasn’t a difficult decision, given the history of how “mutual benefit agreements” usually work out. She said Canada has not yet figured out how to forge new relationships of trust and respect.

“Our elders and past leaders always cautioned us about these agreements, because Canada, as a country, has broken every promise to our First Nations people,” says Wilson, who served as Neskonlith Chief for 16 years.

Project Reconciliation 

Not everyone sees an oil pipeline’s construction through Indigenous lands as a form of 21st-century colonialism.

Stephen Mason, who is not Indigenous, is a Calgary-based entrepreneur and businessman. His business group — Project Reconciliation — says it is talking with some of the 129 communities along the pipeline route to come up with a plan for, what Mason hopes, will be 100 per cent Indigenous equity ownership in the pipeline.

“This is a very, very valuable piece of real estate,” Mason says.

“It stands to create ‘generational wealth’ (through) a pension fund for those Indigenous communities that own the pipeline.”

Still, it’s very unclear how any deal with Indigenous groups might be structured. The cost of the pipeline has soared to $35 billion — more than six times its original projections.

Trans Mountain will recoup those costs from tolls it charges oil companies which use the pipeline to move oil.

But already, those companies are challenging Trans Mountain’s proposed new prices for tolls, arguing they are much higher than what the company originally promised.

Robyn Allan, an independent economist and former corporate executive who has studied the pipeline’s financials for over a decade, says that, under the current pricing model, about half the pipeline cost will have to be paid for by Ottawa, and by extension, Canadian taxpayers, who’ve owned it since 2018.

And that’s not including the costs Trans Mountain incurs to service the massive amounts of debt being accrued to build the pipeline.

The latest documents from the Canada Development Investment Corporation (CDEV), the Crown Corporation that owns the pipeline, indicate $16 billion in debt owed to a federal government account, with another $12 billion owed directly to big banks.

“Unfortunately, what we see is this pattern that we’ve seen for too long of Canadian banks propping up the oil and gas sector,” says Eugene Kung, a longtime lawyer with West Coast Environmental Law, an environmental law and advocacy organization.

Trans Mountain defends its project and its economics, highlighting research from consulting firm Ernst and Young concluding “that Trans Mountain’s expanded operations will contribute $17.3 billion in gross output, $9.2 billion in GDP, including $3.7 billion in wages … and $2.8 billion in tax revenue over the next 20 years.”

That value, insists Project Reconciliation’s Steve Mason, means the debt issue should not take away from the merits of a pipeline from Alberta to a West Coast ocean port, nor should it stop those willing to try from building a new consensus with Indigenous Peoples.

“If we’re going to get these infrastructure projects built, we have to change the model,” Mason says.

The Calgary businessman wants to do exactly that. Mason aims to create an Indigenous sovereign wealth fund for those communities that invest in and become part owners of the Trans Mountain pipeline. In return, the communities and their members would receive payouts from future profits.

“That model needs to be (about) bringing (First Nations) into a conversation of material ownership of these projects as opposed to promises of jobs.”

Still, Mason concedes, “It’s very difficult to make everybody happy.”