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 October 27, 2015 - 11:32 AM EDT
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Tsleil-Waututh Nation Takes NEB, Canada, Kinder Morgan to Federal Court Over "Broken" Pipeline Review

VANCOUVER, BRITISH COLUMBIA--(Marketwired - Oct. 27, 2015) - Today, the Tsleil-Waututh Nation (TWN) is challenging the National Energy Board's (NEB) review of the Kinder Morgan pipeline expansion project, before the Federal Court of Appeal.

"We're asking the court to stop the deeply flawed NEB review so it can be fixed," says Rueben George, Project Manager of TWN's Sacred Trust Initiative. "This case has the potential to send Kinder Morgan back to the drawing board."

TWN's lawsuit says the federal government and NEB's failure to consult the Tsleil-Waututh Nation has resulted in a fundamentally flawed and unlawful review process, which puts the Burrard Inlet and everyone who lives nearby at risk.

The project proposes a second pipeline to transport crude oil from Alberta's tar sands to Kinder Morgan's terminal across the Burrard Inlet from Tsleil-Waututh land. The proposal would triple the amount of oil being transported through Burrard inlet, from 300,000 to nearly 900,000 barrels per day, and increase oil tanker traffic from one a week to at least one a day, about 400 tankers a year. TWN argues:

  • NEB lacked legal authority to start a review, because of the federal government's failure to first consult First Nations on the environmental assessment
  • The NEB failed to consult TWN as a jurisdiction conducting an assessment
  • Excluding marine shipping from the review-despite a seven-fold increase in tankers-was a legal error
  • The NEB process was not procedurally fair

"Governments have a legal obligation to consult with First Nations. But the NEB's review was designed without First Nations consultation or public participation, ignoring the duty to consult and accommodate on decisions affecting Aboriginal rights set down by the Supreme Court," says TWN Chief Maureen Thomas. "In addition, our nation has authority to review decisions that affect our territory, and we conducted a thorough, independent assessment of the pipeline and tanker expansion proposal. This project represents a risk we are not willing to take." 

For example, the independent review found:

  • The Kinder Morgan proposal will make oil spills in Burrard Inlet more likely
  • Up to 90% of a Burrard Inlet oil spill would reach shoreline in hours
  • A serious oil spill would devastate an already-stressed marine environment and risk collapse in remaining salmon stocks, herring, clams, birds and habitats, wiping out Tsleil-Waututh fishing and harvesting rights
  • Spilled oil could expose over one million people to toxic fumes within two hours, including on the Tsleil-Waututh reserve

This case also presents an opportunity for the new Liberal government to affirm its commitment to fixing the flawed regulatory system for pipelines. Prime Minister elect Justin Trudeau was elected on a promise to respect consultation and consent obligations and the UN Declaration of the Rights of Indigenous Peoples, and to undertake a full public review of Canada's regulatory laws, practices and operational procedures, in partnership with First Nations, Inuit and Métis peoples.

Stopping the broken NEB process is an important first step.

Last November, twelve First Nations signed an open letter calling the process unconstitutional. In March, the Mayors of Vancouver, Burnaby, New Westminster, the City of North Vancouver, Victoria, Squamish and Bowen Island declared non-confidence in the process. A number of interveners have also quit the process in protest, including a former BC Hydro CEO, who called the process "fraudulent" and a former ICBC President who called the process "broken beyond repair."

Recently, the NEB delayed its review for a second time, as allegations of bias and conflict re-surfaced, after former Minister of Natural Resources Greg Rickford appointed Steven Kelly, the consultant who authored Kinder Morgan's key economic evidence, to the NEB.

More details on the TWN appeal may be found at:

Anjali Appadurai

Sarah Thomas

Source: Marketwired (October 27, 2015 - 11:32 AM EDT)

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