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The re-routing of TMX locks in carbon and colonialism 

As the cost of the Trans Mountain pipeline keeps ballooning, the Canada Energy Regulator recently approved a decision to re-route the construction – continuing the government’s flagrant disregard for Indigenous sovereignty, reconciliation, and Canada’s climate commitments. 

On September 25, the Canada Energy Regulator ruled in favour of a proposed route change sought by Trans Mountain, the crown corporation that purchased the Trans Mountain Expansion (TMX) pipeline from Kinder Morgan in 2018. Over the objections of the Stk’emlúpsemc te Secwépemc Nation (SSN), the regulator determined that the pipeline can be built through a keystone cultural area without the Nation’s consent. 

It took almost a month for the regulator to release its reasons for allowing this modification, leaving SSN legally unable to request a reconsideration of the decision. Within that time, Trans Mountain continued construction in earnest, creating facts on the ground before any legal remedy can be sought.

The ruling in favour of the re-routing came as work on the contested pipeline nears completion. At one of the route’s final remaining segments, Trans Mountain workers ran into difficulty in the form of a hard-rock formation that stymied their drills southwest of Kamloops, near Jacko Lake. According to SSN, the geology of the region was well-known to the company, which had conducted extensive surveying in the area as part of its initial route planning. But Trans Mountain lawyers convinced the regulator that the density of the rock caught them off guard. 

The Stk’emlúpsemc te Secwépemc Nation knows these lands as Pípsell, an area of profound spiritual and cultural significance recorded in the Nation’s oral histories and teachings about the reciprocal relationship between people and the land. Pípsell is home to traditional foods and medicine plants stewarded by the Nation since time immemorial, and it remains an important site for fishing, hunting, and harvesting today. 

To preserve the integrity of Pípsell as a cultural keystone place, SSN resisted the company’s initial plans to route the Trans Mountain pipeline through the area. But the company was willing to negotiate, and in 2022 the two parties agreed that construction of the 1.3-km stretch of pipeline that runs through Pípsell would proceed by way of micro-tunneling rather than open trench excavation. Tunneling would leave the surface of the land undisturbed, preserving ecosystems along with important cultural landmarks. But when tunneling proved to be more difficult than anticipated, Trans Mountain complained to the Canada Energy Regulator that adhering to the agreement could add hundreds of millions of dollars in additional costs and delays of up to a year or more. 

Locking in carbon

Among the reasons provided by the Canada Energy Regulator in its 47-page document, the economic argument plays a significant role. According to estimates by Trans Mountain, continuing with the agreed-upon tunneling method would cost more than double the amount required for open-trench construction and could lead to delays of a year or more, potentially incurring billions in carrying costs and lost oil revenue. With the project now over a year behind schedule, it comes as no surprise that the regulator sided with the company in favour of the most expedient method of bringing the beleaguered project to completion. 

Initially purchased from Kinder Morgan for what now sounds like an almost reasonable $4.5 billion, the cost of the expansion has ballooned to roughly $35 billion, dramatically undermining the economic case for a project that was already unjustifiable on climate grounds. Citing the runaway cost increases, Dogwood has described the pipeline expansion as “a catastrophic boondoggle of immeasurable proportions,” while Eugene Kung of West Coast Environmental Law calls it “one of the biggest and most expensive mistakes by a federal government.” 

With the business case for the pipeline fatally undermined by cost overruns, the project is now little more than a gift from the federal government to oil and gas companies. Despite their promise to eliminate “inefficient” fossil fuel subsidies, the federal Liberals continue to underwrite the sector’s enormous profits, socializing risks that shareholders refuse to bear on their own. 

Each dollar put towards the pipeline is a dollar not spent on decarbonization. Instead of using federal funds for a generational investment in renewable energy, public transportation, and low-carbon housing, Trudeau’s government is nearly tripling the carrying capacity of a pipeline that transports some of the world’s most carbon-intensive oil to market. This makes the twinning of the Trans Mountain pipeline an exemplary case of what climate researchers call “carbon lock-in”: once fossil fuel infrastructure is in built, the emissions it generates are entrenched. More than a one-time mistake, the pipeline expansion locks in a high-emissions trajectory for decades to come, sabotaging the existential necessity of emissions reduction.

Locking in colonialism

As a project intended to produce long-lived fossil fuel infrastructure, the Trans Mountain Expansion represents a commitment to a future of dangerous climate breakdown. But it is more than that. As the Canada Energy Regulator’s ruling on the Pípsell re-route makes clear, the pipeline is also an example of colonial lock in—an enduring embodiment of Canada’s failure to respect Indigenous sovereignty and stewardship of lands and take seriously its commitments to reconciliation. 

During the project assessment for the proposed Ajax open-pit copper and gold mine in the same area in 2017, the Stk’emlúpsemc te Secwépemc Nation filed a submission with regulators establishing the significance of Pípsell and rejecting the mine that would despoil those lands. The same objections about Pípsell were raised during the planning and approval of the Trans Mountain Expansion, and SSN only consented to the pipeline being built when the company agreed to tunnel and leave the surface of the land undisturbed. Now, at the first sign of difficulty, that agreement has been torn up and SSN’s claim on their sacred lands cast aside to make way for a pipeline that should never have been built.

In 1997, the Delgamuukw decision upheld Indigenous title, recognizing the rights of First Nations on their unceded lands. The principles of the Delgamuukw case were reaffirmed and restated in the Tsilhqot’in ruling in 2014. Following the publication of the Calls to Action that came out of the Truth and Reconciliation Commission, Canada passed the UN Declaration on the Rights of Indigenous Peoples Act (UNDRIP) in 2021, after years of stalling and opposition. Canada originally voted against the declaration at the UN in 2007 alongside fellow settler colonies New Zealand, Australia, and the United States. One of the core tenets of UNDRIP is the right of Indigenous peoples to free, prior, and informed consent (FPIC), which stipulates that Indigenous peoples have the right to reject development on their territories. Just last month, the B.C. Supreme Court issued the Gitxaała decision, affirming the requirement to consult with First Nations before staking mining claims on Indigenous lands.

The rulings and legislation mentioned here are consistent on an essential point: Indigenous peoples have a right to determine what happens on their land. Trans Mountain recognized that principle in its initial agreement with SSN, but when that agreement became too expensive and time-consuming to carry out, they sought legal permission to void it. According to the Canada Energy Regulator, FPIC involves a series of best practices rather than a legal requirement. In their view, engagement and consultation with First Nations is enough to satisfy the need for FPIC. In cases like Pípsell, where consultation does not result in the Nation’s consent, the regulator argues that Indigenous communities do not hold a “veto,” and so must accept development on their land deemed to be in the national interest.

This is not how agreements work. And this is clearly not how reconciliation works. In the Canada Energy Regulator’s ruling, we see the old colonial hierarchy reinforced. Instead of forcing the pipeline through Pípsell without genuine consent and locking in a carbon-intensive, colonial future, our governments ought to be working with Indigenous peoples to repair our relationship with the land and chart a course away from climate breakdown.