Two B.C. First Nations that had been part of a court challenge against the Trans Mountain pipeline expansion have now left the group and sided with the Crown corporation.
The Upper Nicola Band, based in Merritt, and the Stk’emlupsemc te Secwepemc Nation, based in Kamloops, have dropped their litigation with the Federal Court of Appeal and signed deals with Trans Mountain.
Four other B.C. First Nations are continuing with their case against the expansion project, which they argue was approved despite “multiple significant legal deficiencies.”
In a joint news release with Trans Mountain Friday, the Upper Nicola Band said its deal represents a “significant step forward in establishing a relationship” that will address the First Nation’s environmental, archaeological and cultural heritage concerns.
The agreement actively involves the Upper Nicola in emergency response and monitoring of the project, while committing both parties to working to avoid and mitigate impacts on the band’s interests and stewardship areas.
Band members are also encouraged to take advantage of employment and contracting opportunities with the project.
In the release, Upper Nicola Chief Harvey McLeod says the band’s negotiating team came up with the “best deal” possible “under the circumstances presented.”
“The bottom line is that the consultation process needs to change,” McLeod said, adding the First Nation still has “a number of significant issues that must be addressed directly with Canada.”
A news release from Stk’emlupsemc te Secwepemc says its leadership came together and determined an agreement could be a tool used as part of a larger strategy to protect its cultural, spiritual and historical connections to the land.
A Trans Mountain spokesperson confirmed the two bands dropped out of the court challenge last week after continued discussions with the corporation.
The Tsleil-Waututh and Squamish Nations in Metro Vancouver, the Coldwater Indian Band in Merritt and a coalition of small First Nations in the Fraser Valley are still involved in the court challenge against Trans Mountain.
The First Nations launched the challenge in July with the belief that a victory on any of the legal grounds would be enough to quash the current approval and send the pipeline back to the drawing board.
The court has ruled that upcoming arguments can only focus on whether the latest round of Indigenous consultation was adequate.
Last week, the Tsleil-Waututh and three environmental groups sought leave to appeal that ruling in the Supreme Court of Canada, claiming the Federal Court was wrong to refuse to hear arguments about the risk of an oil spill or threats to endangered southern killer whales.
The federal government re-approved the pipeline in June after launching consultation with Indigenous communities. The National Energy Board also conducted new hearings and ultimately gave the project the thumbs up for the second time.
The legal filings from the First Nations argue there were constitutional violations, primarily around the failure to satisfy the duty to consult, accommodate and seek consent from First Nations. The lawsuits also allege regulatory legal errors were made by the National Energy Board.
First Nations communities are divided on the project. There are two groups led by Indigenous communities that want to purchase and operate the existing pipeline from the federal government, with the intention to expand it.
There are other First Nations arguing that the pipeline would destroy significant spiritual and historic sites as well as important aquifers, impeding their ability to practice their culture and exercise Indigenous rights.
— With files from Richard Zussman and the Canadian Press