Prof. Dwight Newman expects Coldwater to receive more compensation, but no other impacts upon project
A court decision in favour of the Coldwater Indian Band by the Federal Court of Appeals Tuesday will not hold up construction of the Trans Mountain Expansion pipeline, according to proponent Kinder Morgan and a Canadian constitutional expert. The Band says it is happy with the court’s support for its land rights.
When the original Trans Mountain pipeline was built in the early 1950s, Coldwater was awarded a one-time payment of $1,292 in return for the 60-foot wide easement running through its lands. Along with other bands to be affected by the twinning of Trans Mountain, which will increase pipeline system capacity to 890,000 b/d, Coldwater applied to the Canadian Government to have the old agreement updated.
According to the decision, Coldwater asked the government “to include more generous compensation for the Band, and modernize the indenture’s terms on such things as current environmental practices and enhanced rights for the Band.”
Coldwater receives taxes from Kinder Morgan for the current use of the right of way. The taxes ranged from 78,000 a year in 2010 to $125,000 in 2014.
The issue before the Court was whether the government would impose new conditions upon Kinder Morgan for the expansion that would protect Coldwater’s “right to use and enjoy its reserve lands.”
The Court ruled that the government failed to properly amend the agreement to protect Coldwater’s rights over those lands.
“In the circumstance, particularly in light of the importance of Coldwater’s interest in its reserve lands, the Crown was under a continuing duty to preserve and protect the band’s interest in the reserve land from an exploitive or improvident bargain,” the decision reads.
“The minister’s failure to assess the current and ongoing impact of the continuation of the easement on Coldwater’s right to use and enjoy its lands rendered his decision unreasonable.”
The decision sets aside the government’s decision and sends it back for “redetermination.”
The Coldwater Indian Band’s website says the community is Interior Salish people who belong to the Nlaka’pamux Nation, with which they share values, language and ancestry. “Locally, our people are known as C’eletkwmx, and our regional affiliation is with the Scw’exmx, the “People of the Creeks,” according to the site. Coldwater is located about 12 kilometres south of Merritt, B.C., has about 860 members.
“We are very happy that the court recognized the importance of our land to the Coldwater people and that it is holding the Crown to a high standard of conduct in making decisions about our land,” said Coldwater Chief Lee Spahan in a statement.
“Now things must change. This is a great day for Coldwater and all First Nations.”
Changes do not appear to affect Kinder Morgan’s ability to build the second pipeline or its construction timeline.
“The majority in the split decision sends the matter back to the Minister for redetermination in light of the Court’s reasons,” said Dwight Newman, a law professor at the University of Saskatchewan, said in an email.
“It would seem possible there could end up being some adjustment to compensation to a particular community, but a larger impact seems unlikely.”
Kinder Morgan is taking the same position.
“The Court’s decision does not affect the day to day operations of the Trans Mountain Pipeline nor the Trans Mountain Expansion Project,” spokesperson Ali Hounsell said in an emailed statement.
“The consent to transfer the indenture from Fortis to Trans Mountain that was provided by the Minister of Indian Affairs and Northern Development is returned to the Minister for redetermination based on the Court’s reasons.”
The $7.4 million Trans Mountain Expansion project, which begins near Edmonton, Alta. and terminates at the Westridge Marine Terminal in Burnaby, is opposed by a number of British Columbia First Nations, environmental groups, and the new BC government of NDP Premier John Horgan.
Public opinion is roughly split within the province, with Metro Vancouver being more opposed and the interior, which is highly dependent upon forestry and mining, more supportive.
The company began initial site preparation and clearing in several locations this month in preparation for construction activities to begin early in 2018.