Trudeau government fails the C’eletkwmx with 'exploitive bargain' for Kinder Morgan

Coldwater Indian Band Chief Lee Spahan, Crown-Indigenous Affairs minister Carolyn Bennett

The Council of Canadians expresses its ongoing solidarity with the C’eletkwmx (Coldwater People) in British Columbia and celebrates the decision by the Federal Court of Appeal that says federal Indigenous Affairs minister Carolyn Bennett failed the Coldwater Indian Band by not protecting them from an 'exploitive bargain' relating to the Kinder Morgan Trans Mountain 890,000 barrel per day tar sands pipeline.

In this January 26, 2017 blog we noted -- Metro News reports, "The First Nation raised its concerns about the proximity of the Trans Mountain route to its aquifer, upon which 90 per cent of the nearly 800 residents depend for drinking water." On November 28, 2016, federal officials responded, “Coldwater could be significantly impacted from a pipeline spill as the community relies primarily on an aquifer crossed by the project for its drinking water. Coldwater members also rely on cultural foods for subsistence and are at greater risk for adverse effects from an oil spill.” Despite this admission, Prime Minister Justin Trudeau announced his approval of the pipeline the next day.

That blog highlighted -- The First Nation has now filed a judicial review challenge to the Trudeau government's decision to approve the pipeline.

Now, almost exactly nine months later, the Canadian Press reports, "The Federal Court of Appeal has set aside a decision by the minister of Indian affairs that allowed the expansion of the Trans Mountain oil pipeline through the Coldwater Indian Reserve near Merritt. The band expressed its concerns for plans to increase the pipelines capacity by twining it, and asked that the government modernize a 1952 agreement to allow for better compensation and environmental practices. The Coldwater nation was paid $1,292 when the existing Trans Mountain pipeline was constructed through its reserve over 60 years ago."

That article adds, "In a split decision, the three-judge panel ruled the federal minister failed to assess the impacts of the easement on the Coldwater band and that it has a continuing duty to protect the band’s interests on its reserve from an exploitive bargain. The court has ordered that the federal government redetermine the approval with consideration of the court decision in mind."

The CBC report highlights, "The ruling states the minister of Indigenous affairs failed to ensure the terms authorizing Kinder Morgan's use of the reserve were updated from the outdated terms of 1952. According to court documents, the minister approved the transfer without properly scrutinizing the transaction."

The Federal Court decision itself states, "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 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."

In response, Coldwater Chief Lee Spahan said, "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. Now things must change. This is a great day for Coldwater and all First Nations."

This decision comes just days before Kinder Morgan faces another Federal Court of Appeal hearing.

Ottawa-based Council of Canadians climate justice campaigner Andrea Harden writes, "From October 2nd to the 14th, nine cases will be heard in Vancouver at the Federal Court of Appeals, seven by First Nations, one from the City of Burnaby and another by the Raincoast Conservation Foundation & Living Oceans Society, challenging the federal approval of the Kinder Morgan tar sands pipeline. These hearings are a critical front of resistance to the project which would violate Indigenous rights, increase tankers sevenfold in the Burrard Inlet, unleash climate pollution equivalent to 2,700,000 cars every year, threaten Orcas, local health and economies."

The Council of Canadians is mobilizing on October 2 to demonstrate cross-country opposition to the Kinder Morgan pipeline.

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