Hearing Order OH-001-2014 Board File: OF-Fac-Oil-T260-2013-0302
NATIONAL ENERGY BOARD
IN THE MATTER OF the National Energy Board Act, R.S.C. 1985, c. N-7, as amended, (“NEB Act”) and the Regulations made thereunder;
AND IN THE MATTER OF the Canadian Environmental Assessment Act, 2012, S.C., c. 19, s. 52, as amended and the Regulations made thereunder;
AND IN THE MATTER OF an application by Trans Mountain Pipeline ULC as General Partner of Trans Mountain Pipeline L.P. (collectively, “Trans Mountain”) for a Certificate of Public Convenience and Necessity and other related approvals pursuant to Part III of the NEB Act.
WRITTEN ARGUMENT OF KWANTLEN FIRST NATION
Counsel for Kwantlen First Nation:
Tim Dickson Farris, Vaughan, Wills & Murphy LLP 2500-700 West Georgia St. Vancouver, BC V7Y 1B3
Tel: 604 661 9341 Fax: 604 661 9349 Email: [email protected] - 2 -
Part I: Overview ...... 3
Part II: Constitutional and Statutory Framework ...... 4 A. Aboriginal rights and title ...... 4 B. The duty to consult and accommodate...... 9 C. Section 35 limitations on the Board’s discretion under the NEB Act ...... 13 1. The standards by which Aboriginal rights and title must be considered ...... 17 2. The Board’s Rio Tinto duty...... 21
Part III: Kwantlen’s History and Aborignal Rights and Title ...... 26 A. An overview of Kwantlen’s evidence in this proceeding ...... 26 B. A brief introduction to Kwantlen’s culture and history ...... 28 C. Kwantlen’s use and occupation of its territory ...... 32 D. Conclusions regarding Kwantlen’s Aboriginal rights and title ...... 37
Part IV: The TMEP’s Impacts on Kwantlen’s Title and Rights ...... 40 A. Kwantlen people’s attachment to their territory ...... 40 B. Kwantlen’s history after 1846 ...... 42 C. Kwantlen people’s concerns about the TMEP in light of the cumulative effects to their territory ...... 58
Part V: The TMEP’s Adverse Impacts on Kwantlen’s Rights and Title ...... 63
Part VI: This Proceeding and the Crown’s Duty to Consult and Accommodate ...... 66 A. This proceeding is incapable of discharging the Crown’s duty to consult and accommodate ...... 67 B. Even the subsequent Phase III consultation, as planned, will not discharge the Crown’s duty ...... 73 C. The Board must recommend against approval of the application...... 74
Part VII: The Breaches of Kwantlen’s Aboriginal Rights and Title Cannot be Justified ...... 74
Part VIII: The Panel Must Recommend Refusal ...... 77
Part IX: Conditions ...... 78 - 3 -
PART I: OVERVIEW
1. Kwantlen First Nation (“Kwantlen”) has for generations beyond counting had its homeland on both sides of the lower Fraser River. Recognized traditionally as one of the larger First Nation communities along the lower Fraser, Kwantlen’s territory stretches from Sumas Mountain in the south-east and past New Westminster in the west. Kwantlen relied on its territory, including the Fraser and its tributaries, for a wide variety of purposes for millennia prior to contact with Europeans; it established significant and complex cultural, social and utilitarian connections to the natural environment and local ecosystems within its territory; and it exclusively occupied extensive portions of its territory when the Crown asserted sovereignty in 1846.
2. Kwantlen intervened in this proceeding to ensure that its Aboriginal rights and title were properly taken into account by the National Energy Board (the “Board”) when making its recommendations to the Governor in Council as to whether a certificate under s. 54 of the National Energy Board Act (the “NEB Act”) be issued to Trans Mountain Pipeline ULC (“Trans Mountain”) in respect of the Trans Mountain Pipeline Expansion Project (“TMEP”).
3. As set out below, Kwantlen has grave concerns about the impacts the TMEP will have on its rights and title. After assessing the TMEP as best as it could given the woefully insufficient capacity funding it was provided, Kwantlen has concluded that the risks the TMEP poses to its territories, lifeways, connections to the natural world, and its people in both current and future generations are far too great, and it therefore opposes the issuance of a s. 54 certificate.
4. The federal Crown has advised that it intends to rely upon this proceeding to the extent possible to fulfill its duty to consult and accommodate, and Kwantlen has therefore participated in this proceeding as best as it was able. The funding available to Kwantlen, however, was far too limited to enable it to obtain the expert technical advice and opinion evidence that is essential for meaningfully participating in the review of a project as technical and complex as the TMEP. Despite the TMEP’s use of and risks to Kwantlen’s territory, and notwithstanding the enormous sums of money Trans Mountain says it will - 4 -
spend on construction and the federal government will receive in tax receipts, Kwantlen has been effectively precluded from meaningfully participating in the technical review of the TMEP.
5. Kwantlen has therefore largely confined its efforts to submitting evidence of its Aboriginal rights and title that will be adversely impacted by the TMEP, and providing a general overview of and context for the reasons for its opposition to the project. Kwantlen calls upon the Board to give proper effect within this proceeding to that evidence of Kwantlen’s Aboriginal title and rights. The submissions that follow are intended to provide a roadmap to the Board as to how that must be done.
PART II: CONSTITUTIONAL AND STATUTORY FRAMEWORK
A. Aboriginal rights and title
6. Section 35 of the Constitution Act, 1982 provides that “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”1
7. Aboriginal peoples occupied these lands long before Europeans settled in North America. Aboriginal rights exist in Canadian law, not as a result of governmental recognition, but because they were not extinguished upon British or French assertions of sovereignty. As Chief Justice Lamer stated in Van der Peet:2
[T]he doctrine of aboriginal rights existed, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they have done for centuries.
8. Aboriginal rights are sui generis in nature. They arise from the prior occupation of land, and
from the sovereign Aboriginal peoples’ control of the land. They are constitutionally protected and afforded priority through section 35. As such, the honour of the Crown is engaged in its dealings with Aboriginal peoples. The words stated in s. 35 that Aboriginal
1 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 1, s. 35(1).
2 R v Van der Peet, [1996] 2 SCR 507 at para 30, 137 DLR (4th) 289 [Van der Peet] [emphasis in the original]. - 5 -
rights are hereby “recognized and affirmed” must be construed in a liberal and purposive manner.3
9. Aboriginal rights are said to fall along a spectrum with respect to their connection to the land.4 At one end are practices and customs that are integral to the distinctive Aboriginal
group asserting the right. In the middle are activities that must take place on the land and are intimately related to it and are site-specific. At the far end lies Aboriginal title, which is a right to the land itself.5
10. The test for Aboriginal rights is whether, prior to the Aboriginal group’s contact with Europeans, the practices or customs existed and were integral to the distinctive culture of the Aboriginal group. The “integral to the distinctive culture” requirement means that the practices or customs were of central significance to the group’s culture. They do not have to have been distinct or unique to that particular Aboriginal group, but it is not sufficient if the practices in question only took place occasionally. Practices that were undertaken for the purposes of survival can satisfy the requirements.6
11. If the evidence supports the existence of such distinctive practices, then the question is whether the contemporary practice for which the protection of s. 35 is claimed bears sufficient continuity to the pre-contact practice. Aboriginal rights are dynamic and are not frozen in time. The continuity analysis, therefore, must be based on a “generous though realistic approach to matching pre-contact practices to the claimed modern right”.7
12. Practices that commonly comprise Aboriginal rights include fishing and hunting for food, social and ceremonial purposes, and gathering plants for food and medicine. Self- government is also a form of Aboriginal right protected under s. 35. In Pamajewon, Chief
3 R v Sparrow, [1990] 1 SCR 1075 at 1106, 70 DLR (4th) 385 [Sparrow].
4 See Delgamuukw v British Columbia, [1997] 3 SCR 1010, at para 138, [1997] SCJ No 108 [Delgamuukw].
5 See Delgamuukw and Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 [Tsilhqot’in].
6 Van der Peet, paras. 45-47, 172.
7 Lax Kw’alaams Indian Band v Canada (Attorney General), 2011 SCC 56 at para 46, [2011] 3 SCR 535. - 6 -
Justice Lamer held that for an Aboriginal group to establish a right to self-government, it must prove that the specific jurisdiction being claimed was exercised by the group as part of the practices, customs and traditions that were integral to its distinctive culture at the time of assertion of Crown sovereignty.8 Constitutional protection of Aboriginal people’s inherent right to self-government was also recognized by the British Columbia Supreme Court in Campbell v British Columbia (Attorney General).9
13. Self-government is also inherent in Aboriginal title, which “confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.”10 As the Court stated in Tsilhqot’in at para. 75:
Aboriginal title post-sovereignty reflects the fact of Aboriginal occupancy pre- sovereignty, with all the pre-sovereignty incidents of use and enjoyment that were part of the collective title enjoyed by the ancestors of the claimant group — most notably the right to control how the land is used. However, these uses are not confined to the uses and customs of pre-sovereignty times; like other landowners, Aboriginal title holders of modern times can use their land in modern ways, if that is their choice.
14. The Court, of course, has recently clarified the test for Aboriginal title in Tsilhqot’in. In order to make out Aboriginal title, an Aboriginal group must demonstrate that:
a. It exclusively occupied the claimed land prior to the assertion of Crown sovereignty in 1846;
b. Its occupation of that land was sufficient; and
c. Where present occupation is relied upon as evidence of historic occupation, that its occupation has been continuous.
8 R v Pamajewon [1996] 2 SCR 821 at para 27, 138 DLR (4th) 204. 9 Campbell v British Columbia (Attorney General), 2000 BCSC 1123 at paras 180-181, [2000] BCJ No 1524 [Campbell].
10 Tsilhqot’in, para. 73. - 7 -
15. The test for sufficiency of occupation is highly context-specific must be examined from both the common law and the Aboriginal perspectives.11 The Court characterized the test in the following ways in Tsilhqot’in:
a. Para. 38 (underlining added): “To sufficiently occupy the land for purposes of title, the Aboriginal group in question must show that it has historically acted in a way that would communicate to third parties that it held the land for its own purposes. This standard does not demand notorious or visible use akin to proving a claim for adverse possession, but neither can the occupation be purely subjective or internal. There must be evidence of a strong presence on or over the land claimed, manifesting itself in acts of occupation that could reasonably be interpreted as demonstrating that the land in question belonged to, was controlled by, or was under the exclusive stewardship of the claimant group. As just discussed, the kinds of acts necessary to indicate a permanent presence and intention to hold and use the land for the group’s purposes are dependent on the manner of life of the people and the nature of the land. Cultivated fields, constructed dwelling houses, invested labour, and a consistent presence on parts of the land may be sufficient, but are not essential to establish occupation. The notion of occupation must also reflect the way of life of the Aboriginal people, including those who were nomadic or semi-nomadic.”
b. Para. 40 (quoting and adopting the reasoning of Cromwell J.A. (as he then was) in R. v. Marshall, 2003 NSCA 105, 218 N.S.R. (2d) 78 at para. 138; underlining added): “I would adopt, in general terms, Professor McNeil’s analysis that the appropriate standard of occupation, from the common law perspective, is the middle ground between the minimal occupation which would permit a person to sue a wrong-doer in trespass and the most onerous standard required to ground title by adverse possession as against a true owner. . . . Where, as here, we are dealing with a large expanse of territory which was not cultivated, acts such as continual, though changing, settlement and wide-ranging use for fishing, hunting
11 Ibid., para. 34. - 8 -
and gathering should be given more weight than they would be if dealing with enclosed, cultivated land. Perhaps most significantly, . . . it is impossible to confine the evidence to the very precise spot on which the cutting was done: Pollock and Wright at p. 32. Instead, the question must be whether the acts of occupation in particular areas show that the whole area was occupied by the claimant.”
c. Para. 42 (all emphases added): “There is no suggestion in the jurisprudence or scholarship that Aboriginal title is confined to specific village sites or farms, as the Court of Appeal held. Rather, a culturally sensitive approach suggests that regular use of territories for hunting, fishing, trapping and foraging is “sufficient” use to ground Aboriginal title, provided that such use, on the facts of a particular case, evinces an intention on the part of the Aboriginal group to hold or possess the land in a manner comparable to what would be required to establish title at common law.”
16. The Court explained the exclusivity requirement this way at para. 48:
Exclusivity should be understood in the sense of intention and capacity to control the land. The fact that other groups or individuals were on the land does not necessarily negate exclusivity of occupation. Whether a claimant group had the intention and capacity to control the land at the time of sovereignty is a question of fact for the trial judge and depends on various factors such as the characteristics of the claimant group, the nature of other groups in the area, and the characteristics of the land in question. Exclusivity can be established by proof that others were excluded from the land, or by proof that others were only allowed access to the land with the permission of the claimant group. The fact that permission was requested and granted or refused, or that treaties were made with other groups, may show intention and capacity to control the land. Even the lack of challenges to occupancy may support an inference of an established group’s intention and capacity to control.
17. As stated above, Aboriginal title confers upon the Aboriginal group “ownership rights similar to those associated with fee simple”, including the right to decide how the land will - 9 -
be used and the right to its economic benefits.12 Aboriginal title differs from fee simple in an important respect:
[I]t is collective title held not only for the present generation but for all succeeding generations. This means it cannot be alienated except to the Crown or encumbered in ways that would prevent future generations of the group from using and enjoying it. Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land.
18. Aboriginal title also differs from fee simple in that it enjoys constitutional protection pursuant to s. 35. In the result, in order to be constitutional, the Crown’s approval of the use of Aboriginal title lands must have the consent of the Aboriginal group or be justified under s. 35.13 That is, “once title is established, the Crown cannot proceed with development of title land not consented to by the title-holding group unless it has discharged its duty to 14 consult and the development is justified pursuant to s. 35 of the Constitution Act, 1982.”
B. The duty to consult and accommodate
19. The honour of the Crown is a core constitutional principle that informs all interactions between Aboriginal peoples and government. Its origin and its purpose are both related to overarching goal of s. 35 of the Constitution Act, 1982 – the promotion of reconciliation. It arises from the assumption of sovereignty over lands and resources formerly held by Aboriginal groups.
20. In Haida, the Supreme Court of Canada held that:15
The honour of the Crown is always at stake in its dealings with Aboriginal peoples: see for example R. v. Badger, [1996] 1 S.C.R. 771, at para. 41, R v. Marshall, [1999] 3 S.C.R. 456. It is not a mere incantation, but rather a core precept that finds its application in concrete practices.
12 Ibid., para. 73.
13 Ibid., para. 76.
14 Ibid., para. 91.
15 Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 [Haida] at para. 16. - 10 -
21. As the Court noted in Haida at para. 17: “[t]he historical roots of the principle of the honour of the Crown suggest that it must be understood generously.” In Taku River,16 the Court stated that the honour of the Crown cannot be “interpreted narrowly or technically, but must be given full effect in order to promote the process of reconciliation mandated by s. 35(1).” The honour of the Crown will give rise to different duties in different circumstances.
22. The honour of the Crown grounds the duty to consult and accommodate. The duty is triggered when the Crown has knowledge – actual or constructive – of a potential Aboriginal claim or right, and contemplates conduct that may adversely affect those rights.17
23. A useful overview of the test for when the duty to consult and accommodate arises was recently set out by Justice Adair in Da’naxda’xw:18
[226] The duty to consult arises where three elements are present: (1) the Crown has knowledge, real or constructive, of the potential existence of an Aboriginal claim or right; (2) contemplated Crown conduct; and (3) the potential that the contemplated Crown conduct may adversely affect the Aboriginal claim or right. See Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, at para. 35; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, at para. 31.
...
[228] In all cases, the honour of the Crown requires that the Crown act with good faith to provide meaningful consultation appropriate to the circumstances: see Haida, at para. 41. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and Aboriginal peoples with respect to the interests at stake: see Haida, at para. 45. The stage of accommodation is reached when the consultation process suggests amendment of Crown policy. “Thus the effect of good faith consultation may be to reveal a duty to accommodate.” See Haida, at para. 47.
24. As set out in Haida, the content of the duty to consult and accommodate is proportionate to the strength of the claim and the seriousness of the potential impacts:
16 Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74 [Taku River], para. 24.
17 Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 [Rio Tinto], para. 34. - 11 -
39 The content of the duty to consult and accommodate varies with the circumstances. Precisely what duties arise in different situations will be defined as the case law in this emerging area develops. In general terms, however, it may be asserted that the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.
...
42 At all stages, good faith on both sides is required. The common thread on the Crown’s part must be “the intention of substantially addressing [Aboriginal] concerns” as they are raised (Delgamuukw, supra, at para. 168), through a meaningful process of consultation. Sharp dealing is not permitted. However, there is no duty to agree; rather, the commitment is to a meaningful process of consultation. As for Aboriginal claimants, they must not frustrate the Crown’s reasonable good faith attempts, nor should they take unreasonable positions to thwart government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached: see Halfway River First Nation v. British Columbia (Ministry of Forests), [1999] 4 C.N.L.R. 1 (B.C.C.A.), at p. 44; Heiltsuk Tribal Council v. British Columbia (Minister of Sustainable Resource Management) (2003), 19 B.C.L.R. (4th) 107 (B.C.S.C.). Mere hard bargaining, however, will not offend an Aboriginal people’s right to be consulted.
43 Against this background, I turn to the kind of duties that may arise in different situations. In this respect, the concept of a spectrum may be helpful, not to suggest watertight legal compartments but rather to indicate what the honour of the Crown may require in particular circumstances. At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. “‘[C]onsultation’ in its least technical definition is talking together for mutual understanding”: T. Isaac and A. Knox, “The Crown’s Duty to Consult Aboriginal People” (2003), 41 Alta. L. Rev. 49, at p. 61.
44 At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision. This list is neither
18 Da’naxda’xw/Awaetlala First Nation v. British Columbia Hydro and Power Authority, 2015 BCSC 16 [Da’naxda’xw], paras. 226 and 228. - 12 -
exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases.
25. As set out in Mikisew Cree, the duty to consult and accommodate “has both informational and response components”.19 In Haida, the Court made clear that “[m]eaningful consultation may oblige the Crown to make changes to its proposed action based on information obtained through consultations” (para. 46):
47 When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation. Thus the effect of good faith consultation may be to reveal a duty to accommodate. Where a strong prima facie case exists for the claim, and the consequences of the government’s proposed decision may adversely affect it in a significant way, addressing the Aboriginal concerns may require taking steps to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlying claim. Accommodation is achieved through consultation, as this Court recognized in R. v. Marshall, [1999] 3 S.C.R. 533, at para. 22: “. . . the process of accommodation of the treaty right may best be resolved by consultation and negotiation”.
26. In order to be effective, consultation and accommodation must begin early in the regulatory process and proceed through the whole series of regulatory decisions. This point has been recognized by the BC Supreme Court, in a passage that has since been cited many times:20
[74] The duty of consultation, if it is to be meaningful, cannot be postponed to the last and final point in a series of decisions. Once important preliminary decisions have been made and relied upon by the proponent and others, there is clear momentum to allow a project. This case illustrates the importance of early consultations being an essential part of meaningful consultation.
27. For this reason, courts and indeed governments themselves regularly acknowledge that, where a proposed project may have adverse impacts on prima facie Aboriginal rights and/or title, then early approval processes – such as environmental assessments and facilities
19 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388, 2005 SCC 69, para. 64.
20 The Squamish Nation et al. v. The Minister of Sustainable Resource Management et al., 2004 BCSC 1320, para. 74. This passage has been cited or quoted in Sambaa K’e Dene First Nation v. Duncan, 2012 FC 204 [Sambaa]; Louis v. British Columbia (Minister of Energy, Mines and Petroleum Resources), 2013 BCCA 412, paras. 105-06; Squamish Nation v. British Columbia (Minister of Community Sport and Cultural Development), 2014 BCSC 991 [Squamish Nation], para. 137. - 13 -
applications – implicate the honour of the Crown and the duty to consult and potentially accommodate.
28. In Nlaka’pamux Nation Tribal Council v. British Columbia (Environmental Assessment Office), 2011 BCCA 78, the British Columbia Court of Appeal recognized that consultation outside of the EA process could not adequately replace consultation within the EA process:
[97] While consultation outside of the environmental assessment is possible, it seems to me that it cannot substitute for consultation within the assessment process itself. The assessment process is a detailed investigation of the environmental effects of a project, and is critical to the process leading to an environmental assessment certificate. Denying the NNTC a role within the assessment process is denying it access to an important part of the high-level planning process. Case law makes it clear that involving First Nations at the early stages of high-level planning can be essential to proper consultation: Haida; Musqueam Indian Band v. British Columbia (Minister of Sustainable Resource Management), 2005 BCCA 128, 37 B.C.L.R. (4th) 309 at para. 95; Kwikwetlem First Nation v. British Columbia (Utilities Commission), 2009 BCCA 68, 89 B.C.L.R. (4th) 273 at para. 70. In this case, that demanded recognition of the NNTC’s right to be consulted in the formulating (or reformulating) of the s. 11 order.
...
[103] The parties have, apparently, come to this Court to resolve an issue of law - that is, whether First Nations consultation in the environmental assessment process must be provided for in a s. 11 order, or whether there is some extra-statutory method by which it can take place. We are able to answer that the s. 11 order must set out the scope of any First Nations consultation that is to take place as part of the assessment process. While this does not preclude consultation outside the assessment process, such consultation will not serve as a substitute for consultation within the process.
C. Section 35 limitations on the Board’s discretion under the NEB Act
29. As the Board frames its recommendations to Cabinet, it must remember that it is bound to act in a manner that is consistent with the Constitution,21 particularly s. 35. As the Supreme Court of Canada stated in its 1994 AG Quebec decision:22
21 Slaight Communications Inc v Davidson, [1989] 2 SCR 1038 at para 87, [1989] SCJ No 45.
22 Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159 [AG Quebec]. - 14 -
It is obvious that the Board must exercise its decision-making function, including the interpretation and application of its governing legislation, in accordance with the dictates of the Constitution, including s. 35(1) of the Constitution Act, 1982. Therefore, it must first be determined whether this particular decision of the Board, made pursuant to s. 119.08(1) of the National Energy Board Act, could have the effect of interfering with the existing aboriginal rights of the appellants so as to amount to a prima facie infringement of s. 35(1) .
30. The Federal Court of Appeal has more recently confirmed this continuing duty on the part of the Board to respect section 35 rights: “It is clear from the decision of the Supreme Court of Canada in Quebec (Attorney General) v. Canada (National Energy Board) that the NEB is required to conduct its decision-making process in a manner that respects the provisions of subsection 35(1) of the Constitution”.23
31. The Standing Buffalo case concerned a challenge by a First Nation to a section 52 certificate on various grounds. One ground was that the Board had failed to undertake an analysis of whether the Crown had discharged any duty to consult the First Nation, pursuant Haida and subsequent case law. The Federal Court of Appeal held that the Board did not itself owe a Haida duty, that it did not need to undertake an assessment of whether the Crown owed a duty to consult pursuant to Haida, and that the failure to do so did not infringe section 35.
32. In dismissing the Standing Buffalo Dakota First Nation’s argument that the Board was required to consider whether the Crown owed and had satisfied a Haida duty, the Court said this at para. 40 (emphasis added):
...the decision in Quebec (Attorney General) v. Canada (National Energy Board) establishes that in exercising its decision-making function, the NEB must act within the dictates of the Constitution, including subsection 35(1) thereof. In the circumstances of these appeals, the NEB dealt with three applications for Section 52 Certificates. Each of those applications is a discrete process in which a specific applicant seeks approval in respect of an identifiable Project. The process focuses on the applicant, on whom the NEB imposes broad consultation obligations. The applicant must consult with Aboriginal groups, determine their concerns and attempt to address them, failing which the NEB can impose accommodative requirements. In my view, this process ensures that the applicant for the Project approval has due regard for existing Aboriginal rights that are recognized and affirmed in subsection 35(1) of the Constitution. And, in ensuring that the applicant respects such
23 Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc. (2009), 313 D.L.R. (4th) 217 [Standing Buffalo] at para 48. - 15 -
Aboriginal rights, in my view, the NEB demonstrates that it is exercising its decision-making function in accordance with the dictates of subsection 35(1) of the Constitution.
33. In its Reasons for Decision in OH-3-2007 (“Southern Lights”) with respect to the decision that was appealed to the Federal Court of Appeal, the Board set out its process in more detail at page 10 (emphasis added):
The Board’s process is designed to ensure that it has a full understanding of the concerns that Aboriginal people have in relation to a project before it renders its decision. Aboriginal people who have an interest in a project are able to participate in the regulatory process on several levels. The Board weighs and analyzes the nature of the Aboriginal concerns and the impacts a proposed project might have on those interests as part of its overall assessment of whether or not the project is in the public interest.
34. Later in its reasons, at pages 10 and 11, the Board further described the process by which it considers the impact on section 35 rights (emphasis added):
Since the NEB is an impartial, quasi-judicial tribunal bound by the principles of natural justice, it must receive information about Aboriginal concerns with respect to a specific project through its public hearing process. It is the practice of the Board to take Aboriginal interests and concerns into consideration before it makes any decision that could have an impact on those interests. In order to ensure that the Board has the best possible evidence before it in this respect, the Board’s Filing Manual sets out the requisite elements of an application, requires applicants to consult with potentially impacted Aboriginal groups early on in their project planning, and requires that applications include detailed information on any issues or concerns raised by Aboriginal groups or otherwise identified by the Applicant. In addition to the initial filings required by the Filing Manual, the Board frequently requests additional information from applicants about potential impacts of a project on Aboriginal people and mitigation options. Typically, the stronger the Aboriginal interests and more significant the potential impact, the more evidence the Board will require before rendering its decision. Such evidence could include the details on the nature of the Aboriginal rights and interests, the efforts made by an applicant to resolve issues and the possibility of mitigation of the impacts.
35. The Board’s reasons in Southern Lights further discuss how “[t]he Board’s process is designed to ensure it has the best information available about Aboriginal concerns so that it may take these concerns into consideration before it renders a decision”. - 16 -
36. In respect of Trans Mountain’s application, the Board’s List of Issues, which is Appendix I to the April 2, 2014 Hearing Order, sets out that the Board will consider “[p]otential impacts of the project on Aboriginal interests”. In accordance with AG Quebec, “Aboriginal interests” must include, at least, Aboriginal rights and title.
37. In the remainder of this Part C, Kwantlen addresses two respects in which the jurisprudence summarized above is deficient.
38. First, that jurisprudence and the Board’s List of Issues does not specify the standards by which the Board will “consider” Aboriginal rights and title. Kwantlen says that, where the evidence only establishes a prima facie case to Aboriginal title or rights, then the applicable framework is the accommodation standard set out in Haida and subsequent cases. That is, while the Board does not have a duty to engage in a process of active consultation of affected First Nations, it does have a duty to assess the evidence of Aboriginal rights and title put before it and the potential impacts on them, and to consider whether those rights and title need to be accommodated in order to respect s. 35. Such accommodation could include the imposition on the TMEP of mitigative conditions, or indeed recommending that the TMEP not be approved.
39. Where the evidence tendered goes beyond simply setting out a prima facie claim, however, and actually proves the existence of Aboriginal rights or title, then the Board must treat those rights or title as having been proved for the purposes of this proceeding. In such a case the Board must then move on to consider whether the TMEP would negatively impact them and, if so, whether the relevant First Nation has consented to those impacts or, if not, whether the infringement of the Aboriginal title or rights is justified.
40. These issues going to the standard by which the Board must consider the TMEP’s impacts on Aboriginal rights and title will be addressed further under subheading (1).
41. The second respect in which the jurisprudence outlined above is deficient lies in the conclusion that the Board does not owe a duty, pursuant to Rio Tinto, to determine whether the Crown has discharged its duty to consult and accommodate where the Crown is not the project proponent. The Federal Court of Appeal recently affirmed that conclusion in - 17 -
Cheppewas of the Thames First Nation v. Enbridge Pipelines Inc., 2015 FCA 222 (“Chippewas”). While Kwantlen submits, respectfully, that the Federal Court of Appeal reached the wrong conclusion on the facts of that case,24 such a conclusion cannot apply on the facts of this application, which differ in crucially relevant respects. The federal Crown admits that it owes a duty to consult and potentially accommodate affected First Nations, but it has also formally stated, on the record before the Board, that it will rely on the Board’s process to discharge that duty to the extent possible. The Crown has also participated in this proceeding and so is available to speak to the extent to which it believes it may rely upon this process to discharge the duty, as well as the degree to which its post-Board consultations could realistically address any extent to which the Board’s process does not discharge the duty.
42. As will be addressed further below under subheading (2), Kwantlen says that, in these circumstances, the Board does owe a Rio Tinto duty. Pursuant to s. 52(a) of the NEB Act, the Board is statutorily obliged to set out its recommendation as to whether the TMEP should be approved, and to provide its reasons. The Governor in Council will only be constitutionally capable of approving the TMEP if doing so conforms to the honour of the Crown, which requires that the Crown have discharged its duty to consult and accommodate. The Board is a court of record (NEB Act, s. 11) fully empowered to determine questions of law (NEB Act, s. 12(2)), including constitutional law. The Board has the power to consider the adequacy of the Crown’s scheme for consultation and, pursuant to Rio Tinto, the duty to do so.25
1. The standards by which Aboriginal rights and title must be considered
43. The Board has always insisted that, as a quasi-judicial tribunal, it cannot engage in direct consultations with First Nations. Kwantlen accepts that the Board does not have that kind of Haida duty but, of course, it is obliged to respect s. 35 when it makes its decisions and its recommendations by considering the impact the TMEP would have on claimed and proven Aboriginal rights and title. The Federal Court has held that the duty of an administrative body to act constitutionally also arises when the body’s statutory mandate is to make
24 An application for leave to appeal has been filed with the Supreme Court of Canada. - 18 -
recommendations only, as opposed to final and binding decisions.26 That conclusion makes obvious practical sense: if the Crown must comply with the s. 35 when it makes its final decision, then in recommending that the Crown make a particular decision, the Board is constitutionally and statutorily obliged to itself respect s. 35.
44. An outstanding question is what standards should properly apply when the Board takes the impacts on rights and title into account. Kwantlen says that, while the Board is not directly subject to a Haida duty itself, the duty to consult and accommodate serves as an important guide to its process. That duty has the following salient features:
a. The depth of the duty is calibrated to the strength of the claims to the asserted rights and the magnitude of the potential impacts on those rights.
b. Where a First Nation is owed deep consultation, then it must be afforded meaningful opportunities to participate in the decision-making process, including to allow it to assess the proposed decision’s impacts on its rights and title and make its concerns known.
c. The decision-maker must ensure that the First Nation has been meaningfully able to articulate its concerns about the proposed decision’s impacts on its rights and title, and the decision-maker must take those decisions into account and consider whether the claimed rights and title need to be accommodated.
d. Accommodation can include not making the proposed decision that would cause the impacts, or imposing conditions that would mitigate the impacts on the First Nation.
45. The Board’s process does parallel certain aspects of the duty to consult and accommodate:
a. The List of Issues includes impacts on Aboriginal interests.
25 Rio Tinto, para. 58.
26 Canada (Attorney General) v. Al Telbani, 2012 FC 474, [2012] F.C.J. No. 507. - 19 -
b. Accordingly, the proponent is required to supply the Board with information about Aboriginal rights and title that may be impacted by the TMEP, and affected First Nations may participate in the process.
c. As set out in its Southern Lights decision, the Board recognizes that the degree of information required ought to be calibrated to the strength of the claims to rights and title and the significance of the potential impacts on them: “Typically, the stronger the Aboriginal interests and more significant the potential impact, the more evidence the Board will require before rendering its decision”.
d. Affected First Nations – along with non-Aboriginal participants – may be afforded some funding by the Crown to allow them to participate.
46. Kwantlen stresses two elements of the duty that it says the Board must ensure its process mirrors in order that it properly respects s. 35. First, the Board must ensure that First Nations with strong claims to Aboriginal rights or title that may be significantly impacted by the TMEP have had a meaningful opportunity to participate in this process, in order that their rights and title and the potential impacts on them are adequately understood by the Board. If First Nations have not been accorded that opportunity, or if the Board considers that it does not have adequate information before it, then it must seek to remedy that deficiency. To do so, the Board could require a further process to gather the further information (such as by invoking s. 52(5) of the NEB Act, or seeking extensions under s. 52(7)) or recommend that the TMEP not be approved unless further study is undertaken.
47. Second, in making its decision, the Board must specifically consider the nature of the claims to Aboriginal rights and title and the seriousness of the potential impacts on them, and it must consider whether and how those rights and title should be accommodated. Doing so requires that the Board turn its mind to Kwantlen’s individual claims.27 It is not enough for the Board to simply receive evidence of First Nations’ claims to title and rights; it must assess the strength of those claims and the degree of the potential impacts to the claimed
27 Huu-Ay-Aht First Nation v. British Columbia (Minister of Forests), 2005 BCSC 697 at para. 126. - 20 -
rights and title, and it must consider whether accommodations need to be made in order to comply with s. 35.
48. Where there is sufficient evidence of asserted Aboriginal title and rights, such that the claim goes beyond a prima facie case and actually proves the existence of such title and rights, then the Board’s duty is different, however. In such a circumstance, the Board must find that those title or rights have been proved for the purposes of this proceeding, and it must then turn its mind to whether approval of the TMEP would infringe that title or those rights and, if so, whether such infringement is justified.
49. This issue is similar in many respects to the scenario presented in the recent Saik’uz case,28 where two Carrier Sekani First Nations have sued Rio Tinto Alcan in nuisance for interfering with their Aboriginal rights. The chambers judge struck out the claims on the basis that there could be no nuisance as the Aboriginal rights said to be interfered with were not yet proven, only claimed. The Court of Appeal allowed the appeal, finding that the First Nations did not have to obtain a declaration of Aboriginal rights before they could sue on interference with those rights (underlining added):
[66] As whatever Aboriginal rights the Nechako Nations may have are already in existence, it seems to me there is no reason in principle to require them to first obtain a court declaration in an action against the Province before they can maintain an action against another party seeking relief in reliance on their Aboriginal rights. As any other litigant, they should be permitted to prove in the action against another party the rights that are required to be proved in order to succeed in the claim against the other party.
[67] As an example, assume that a lessee of land sued Alcan in private nuisance and that there was some issue with respect to the validity of the lessee’s lease. In order to prove that it had sufficient occupancy to found an action in private nuisance, the plaintiff/lessee would have to prove the validity of its lease. The plaintiff/lessee would be entitled to prove the lease’s validity in the action against Alcan, and no one would suggest that the plaintiff had no cause of action until it first sued the lessor and obtained a court declaration as to the validity of the lease. Nor would the lessor be required to be a party to the action, although it may be in the interests of the plaintiff/lessee to make the lessor a party so that the findings with respect to the validity of the lease would be binding on the lessor.
28 Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc., 2015 BCCA 154. - 21 -
[68] Aboriginal people are part of Canada’s community, and they should not be treated disadvantageously in comparison to any other litigant asserting claims for nuisance and breach of riparian rights. Setting a separate standard for Aboriginal people before they can sue other parties in order to enforce their rights is not only lacking in principle but could also be argued to be inconsistent with the principle of equality under the Charter of Rights and Freedoms.
50. As set out above, the Board is a court of record and is fully empowered to determine questions of law and fact for the purposes of the NEB Act (ss. 11 and 12(2)). Where a First Nations intervenor asserts that it has established the existence of Aboriginal rights and title that would be unjustifiably infringed by the TMEP, then the Board is statutorily obliged to adjudicate that issue. It is also constitutionally obliged to do so, as the Supreme Court held in AG Quebec.29
2. The Board’s Rio Tinto duty
51. The Federal Court of Appeal has recently held, in the Chippewas case, that the Board does not owe a Rio Tinto duty – that is, that it is not obliged to determine whether the Crown had discharged its duty to consult and accommodate affected First Nations.
52. The Chippewas case, however, presents a factual scenario crucially distinct from the facts of these proceedings. That case concerned a judicial review of the Board’s decision to approve Enbridge Pipelines Inc.’s application, under s. 58 of the NEB Act, for the Line 9B Reversal and Line 9 Capacity Expansion Project. The Chippewas had argued that the Board should not decide the application until it made a Rio Tinto-style determination as to whether the Crown had a Haida duty to consult and accommodate the Chippewas and whether that duty had been discharged. The Board granted Enbridge’s application, and the Federal Court of Appeal dismissed the application for judicial review. The Court came to that decision very largely because the Crown had not participated in the proceeding before the Board. The Court stated its conclusion on this issue this way at para. 59 (underlining added): “For the foregoing reasons, I conclude that the Board, in the absence of the Crown as a participant in
29 At para. 40. See also Beckman v. Little Salmon/Carmacks First Nation, [2010] 3 S.C.R. 103, 2010 SCC 53 at para 45, as well as Rio Tinto at para. 69: “The power to decide questions of law implies a power to decide constitutional issues that are properly before it, absent a clear demonstration that the legislature intended to exclude such jurisdiction from the tribunal’s power (Conway, at para. 81; Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, [2003] 2 S.C.R. 585, at para. 39). “[S]pecialized tribunals with both the expertise and authority to - 22 -
the section 58 application in respect of the Project, was not required, as a precondition to its consideration of that application, to determine whether the Crown was under a Haida duty, and if so, had discharged that duty, in respect of the Project.”30
53. The facts of this proceeding differ from those in Chippewas (and in its predecessor, Standing Buffalo31) in three fundamental respects:
a. The Crown (meaning the federal Crown) has expressly acknowledged that it has a duty to consult and accommodate affected First Nations.
b. The Crown has expressly stated, on the record before the Board,32 that it is relying on:
i. the Board “to ensure an adequate evidentiary record is generated through the review process and to make recommendations to the Government on whether it is in the public interest for the Government to approve the Project and, if so, what conditions should apply”; and
ii. this proceeding, “to the extent possible, to identify, consider and address potential adverse impacts of the Project on asserted or established Aboriginal treaty rights” and, consequently, “to the extent possible, to meet the Crown’s duty to consult.”
c. The Crown has participated in this proceeding, and has specifically tendered evidence of its approach to consultation with First Nations.
54. Beginning first with the third of these factors, a number of federal ministries have intervened before the Board. With respect to Aboriginal consultation, the most relevant of those
decide questions of law are in the best position to hear and decide constitutional questions related to their statutory mandates”: Conway, at para. 6.”
30 Also see the Court’s reliance on the Crown’s non-participation at paras. 33, 36-39, 41-42, 49, 55 and 57.
31 See para. 56 of Chippewas, where the Federal Court of Appeal states: “In my view, the essential factual context in Standing Buffalo is indistinguishable from the factual context in this appeal.”
32 C249-9-2, pp. 84-88. - 23 -
ministries is Natural Resources Canada (“NRC”), the Major Projects Management Office (“MPMO”) of which is serving as the Crown Consultation Coordinator for the TMEP.33 According to NRC’s evidence filed in this proceeding, “[t]he MPMO serves as the primary point of contact within the federal government for Aboriginal groups being consulted on the Project, and ensures the participation of federal departments and agencies in consultation activities with potentially impacted Aboriginal groups.”34
55. NRC has filed evidence of its efforts – both undertaken and planned – to consult such potentially impacted Aboriginal groups.35 That evidence includes a letter that was sent out to all such groups (including Kwantlen) in February of 2015 describing the Crown’s approach to consultations for the TMEP (the “Approach Letter”).36 That letter – including its attachment – sets out in some detail a consultation plan in respect of the TMEP, and it includes the following statements:
a. It states to the recipient Aboriginal groups (of which, again, Kwantlen was one) that “[y]our group will be consulted in accordance with the requirements of [the Canadian Environmental Assessment Act, 2012 and the National Energy Board Act]”.
b. “The NEB has full authority and relevant expertise to ensure an adequate evidentiary record is generated through the review process and to make recommendations to the Government on whether it is in the public interest for the Government to approve the Project and, if so, what conditions should apply.”
c. “Consequently, the Government will rely on the NEB review process, to the extent possible, to identify, consider and address potential adverse impacts of the Project on asserted or established Aboriginal treaty rights.”
33 Ibid.
34 C249-9-1, para. 22.
35 See C249-9-1, paras. 18-54.
36 See C249-9-2, pp. 84-88. - 24 -
d. “The NEB review process is an open and transparent venue for Aboriginal groups to bring concerns, comments and/or evidence forward. Aboriginal groups are strongly encouraged to bring information to the NEB related to the nature and scope of their potential or established Aboriginal and treaty rights and the potential adverse impacts that the Project may have on these rights. Aboriginal groups are also invited to propose appropriate measures to avoid, mitigate or accommodate such impacts on potential or established Aboriginal and treaty rights.”
e. “The NEB has jurisdiction to establish conditions for the Project in relation to those matters that are under the NEB’s mandate through the assessment of potential environmental effects and the identification of mitigation and avoidance measures.”
f. “The Government of Canada will rely on the NEB review process, to the extent possible, to meet the Crown’s duty to consult.”
g. “The responsibility for ensuring the legal duty to consult is appropriately discharged ultimately rests with the Crown, not the NEB or the proponent.”
h. “The NEB will consider adverse impacts the project could have on potential or established Aboriginal or treaty rights based [on] evidence filed by commenters, intervenors and the proponent. Based on this evidence the NEB will submit a Final Report to the Government on whether the Project is in the public interest and recommend project conditions to avoid, mitigate, or accommodate those potential impacts.”
56. This scenario is utterly distinct from what the Federal Court of Appeal considered in Standing Buffalo and Chippewas. Here, the federal government is both participating in this proceeding and expressly relying on it to discharge, to the extent possible, the Crown’s duty to consult and accommodate, including by identifying Aboriginal rights and title impacted by the TMEP and by determining means of mitigating those impacts. - 25 -
57. The Approach Letter also details subsequent phases of the federal government’s planned consultation process. Most importantly, it outlines Phase III of its consultation plan, which phase “commences at the close of the NEB hearing record and ends with a GIC decision on the Project.” Pursuant to s. 54(3) of the NEB Act, that period lasts no longer than three months, unless Cabinet extends that period by order. The Approach Letter describes Phase III consultation activities this way:
From November 2015 to January 2016, the MPMO will coordinate consultation meetings between the Crown and Aboriginal groups for which the depth of consultation has been determined to be moderate or high. The purpose of these consultations is to conduct a meaningful two-way dialogue to determine if there are any concerns related to the Project that have not been fully addressed by the NEB’s draft conditions or the proponent’s commitments to that point in the process, and to consider proposals from Aboriginal groups for accommodation measures that could be considered by the Crown to further address outstanding issues or concerns.
58. It is patently clear from the nature of these proceedings, the time limit set out in s. 54(3) of the NEB Act, and the Approach Letter itself that it is during the present NEB proceeding (which the federal government terms “Phase II” of its consultation plan) that the vast bulk of the consultation work will be done. As the above quotation from the Approach Letter makes plain, while Phase III may serve as an opportunity to identify deficiencies in the consultation process, there is no plan to address any such deficiencies; indeed, nor could there be time to do so. If there are any fundamental defects in this NEB proceeding in terms of consultation with affected First Nations, then the federal government’s consultation plan will be obviously deficient and inconsistent with the honour of the Crown.
59. In these circumstances, the Board has a duty to determine whether the Crown’s consultation plan – particularly its reliance on this proceeding – is capable of discharging its duty to consult and accommodate. The Board has the statutory mandate to determine questions of constitutional law and, pursuant to s. 52(1) of the NEB Act, it is obliged to set out its recommendations as to whether to approve the TMEP and the terms and conditions that should be included in a certificate if one were issued. It is not constitutionally permissible for the Board to recommend approval of the TMEP if First Nations have not been appropriately consulted and have not received appropriate accommodation for their - 26 -
Aboriginal rights and title. The Board must turn its mind to that issue, and if it is of the view that the duty to consult and accommodate is not being properly discharged through this proceeding, then it must recommend that the TMEP not be approved until the Crown’s duty is met.
PART III: KWANTLEN’S HISTORY AND ABORIGNAL RIGHTS AND TITLE
A. An overview of Kwantlen’s evidence in this proceeding
60. Kwantlen has filed four statements of evidence in this proceeding, plus a Cultural Heritage Overview Assessment (“CHOA”), which was filed confidentially.
61. Three of the statements are provided by two elders and a younger member of the community. They largely focus on Kwantlen’s peoples’ connections to their territory, and their concerns about the cumulative effects of the TMEP on the health of their territory.
62. By far the most extensive statement of evidence was given by Chief Marilyn Gabriel. She overviews Kwantlen’s culture, its Aboriginal rights and title, and the community’s concerns about the TMEP and this proceeding. Among the exhibits to the statement are extracts of the following ethnographic reports:
a. The Salish People by Charles Hill-Tout, an early ethnographer.
b. Wilson Duff’s The Upper Stalo Indians of the Fraser Valley, British Columbia, published in 1952. While Kwantlen was not a specific focus of his text, Duff did include comments on the territories of each community along the Fraser.
c. Wayne Suttles published Katzie Ethnographic Notes in 1955. While this text obviously primarily concerns Katzie, not Kwantlen, much of the ethnography applies to Kwantlen as well, and Suttles also includes comments specifically regarding Kwantlen.
d. The Hudson’s Bay Company’s Fort Langley trading post was built in Kwantlen territory, and Kwantlen people established a settlement across from the fort on McMillan Island. As a result, the “Fort Langley Journals” present a limited but valuable record of Kwantlen people soon after contact. The anthropologist Wayne - 27 -
Suttles’ essay, “The Ethnographic Significance of the Fort Langley Journals”, is published in a book entitled The Fort Langley Journals: 1827-1830.
e. Keith Thor Carlson is among the most prominent ethnographers of the Stó:lō working today, and his text The Power of Place, The Problem of Time (based on his doctoral dissertation) is an important resource.
63. In 2009/10, Kwantlen initiated what they called the Kwantlen Territory Knowledge Project (the “KTKP”), the aim of which was to record archaeological, oral history, archival and current use evidence of their territories. The KTKP was overseen by Dr. Duncan McLaren, a professor of archaeology at the University of Victoria. The KTKP is incomplete and very much remains a work in progress, but Kwantlen has been able to record substantial evidence of their occupation of their territory, which evidence is consolidated into one database. Among the products of the KTKP are the following, which are attached as exhibits to Chief Gabriel’s statement:
a. A “Cultural Heritage Sites Literature Review” prepared by Kevin Neary of Traditions Consulting Services, Inc. (the “Neary Report”).
b. A report on the “Creation of Kwantlen Indian Reserves, 1858-1930” was prepared by Cairn Crockford in two parts – one covering the colonial period (the “Colonial Reserve Report”), and one covering the federal government’s setting aside of reserves (the “Federal Reserve Report”) (together, the “Reserve Reports”).
64. The CHOA – which, again, Kwantlen filed confidentially in this proceeding – outlines the very substantial existing evidence of Kwantlen’s occupation of an extensive territory through which the TMEP would run. Preparation of the CHOA was overseen by Dr. McLaren and largely relies on the data collected in the KTKP. - 28 -
B. A brief introduction to Kwantlen’s culture and history37
65. Kwantlen are Coast Salish peoples. The traditional language of the community is Hun'qumi'num, although Kwantlen’s ancestors spoke other language dialects, depending on where they were situated in the territory, including the upriver dialect of Halq̓ eméylem. Kwantlen are also, broadly, Stó:lō people, who were the larger Aboriginal cultural group in permanent and seasonal settlements along the Fraser River and its tributaries and areas of the upper and lower Fraser Valley from areas east in Yale to Vancouver.
66. In Hun'qumi'num, the name “Kwantlen” means “tireless runners”. Kwantlen people were given that name because of the breadth of their territory and the stamina and strength of the men trained in the community to run and deliver messages to the territory’s outer reaches.
67. The present Kwantlen membership totals 265 members.
68. Kwantlen has six reserves, the most populated of which is located on McMillan Island in the Fraser River, across from Fort Langley. The others are also on or nearby the Fraser River.
69. Prior to contact and the assertion of sovereignty in the area, Kwantlen was a large and dominant Aboriginal group on the lower Fraser. Its traditional territory extends from Mud Bay in Tsawwassen to the south, to the northern end of Stave Lake to the north, east to Mission and west to New Westminster.
70. As discussed in more detail below, prior to contact and before 1846, Kwantlen people extensively used the resources of the lands and waters of their traditional territories, including by establishing a number of settlements and fixed cultural sites throughout the territory. Those settlements included the Salmon River on or about where the pipeline is proposed to cross.
71. According to Kwantlen oral history and belief, the original Kwantlen person was a sky-born hero named Swaniset, who dropped from the sky at Sheridan Hill near the eastern shore of Pitt Lake. Swaniset was the greatest of the First People on the Lower Fraser. He
37 The submissions under this subheading B are based on C198-11-1 (Chief Gabriel Statement, Vol. I), paras. 4-9, 19-35. - 29 -
accomplished a great many feats, including increasing the network of sloughs that connect the various waterways of the Fraser Delta, introducing eulachon to the Fraser, and marrying the daughter of the leader of the sockeye people and bringing her back home with them, so that the sockeye regularly return to them.
72. One of the sloughs that Swaniset created stretched from the Alouette River southward, and terminated just before the Fraser, at a village called Katzie. The slough was called the “River of the Kwantlen People”, for the Kwantlen lived at Katzie. Swaniset then directed others of his people to join the Kwantlen at Katzie, and the modern Katzie tribe is descended from some of those people, who joined from a settlement on Pitt Lake.
73. After some time, some Kwantlen people followed Swaniset’s lead and moved to the site once occupied by the penitentiary near New Westminster, establishing settlements called Qiqá:yt and Skaiametl, on both sides of the Fraser River here. Some Kwantlen people also moved with Swaniset upriver from Katzie to a place now called Hammond Mills (in present- day Maple Ridge).
74. While some Kwantlen people continued to settle at Qiqá:yt and Skaiametl, the great transformer Xexá:ls arrived among them. He transformed some lazy people into ravens, and thus consigned them to begging for their food. He transformed other people – who roamed in the woods, not providing for their families – into wolves; those people subsequently made available to other Kwantlen people their special spirit power to assist young men in hunting and women in mat-making and the weaving of woolen garments. Xexá:ls determined that the rest of the Kwantlen people were wise, and so he did not transform them.
75. Some of the Kwantlen people who had been transformed into ravens migrated upriver to the territory around Stave River and Lake, occupying lands left vacant by earlier residents who had been wiped out by the smallpox epidemic. Part of this territory has been referred to as Sxwòyeqs, which means “all dead” or “tribe dead”.
76. Later, some Kwantlen people left Qiqá:yt and Skaiametl and established themselves at the mouth of the Coquitlam River. - 30 -
77. Tribes that were severely depopulated following the smallpox epidemic in the 1770s or 1780s amalgamated with Kwantlen people or were taken over, such that Kwantlen’s territory grew to include the lands of those tribes. One such area was around where Fort Langley now is, and included the Salmon River.
78. Migrations within Kwantlen’s broad territory, or extending or shifting their territory, are an important part of history, as they are with the histories of many Stó:lō First Nations. Carlson sets out a useful map and summary of their migratory movements in his book.
79. While Swaniset was a sky-born hero and Xexá:ls was a transformer, Skwelselem was a human-born first ancestor to whom Kwantlen people can trace back their chiefs in an unbroken line. Skwelselem lived in the time of Swaniset’s and Xexá:ls’s transformations. Many momentous events occurred during his time and the lifetimes of his sons, including a great conflagration (or fire), a great flood, and a long famine.
80. Kwantlen ancestors had their first contact with Europeans toward the end of the eighteenth century – in the 1770s or the 1780s. That contact was not with humans, but with smallpox introduced, unintentionally, by the Spanish in Mexico and which made its way to Kwantlen territory, having spread through First Nations networks up the continent. It is estimated that two-thirds of people died in less than two months. The epidemic occurred at the end of summer, when Kwantlen people would have been preparing food for the winter. They were unable to store enough food and they starved through the winter.
81. The scale of the trauma of losing two-thirds of one’s population is quite literally unimaginable. Many Stó:lō communities are only now finally beginning to recover. Many communities never did recover, and indeed some communities that were severely depopulated either amalgamated with or were taken over by Kwantlen.
82. Simon Fraser came down the river in 1808 and met Kwantlen ancestors at their village on the south side of the Fraser River, to the east of where Patullo Bridge is now. Fraser’s interactions with Kwantlen people are described at some length in the Neary Report.
83. Later, in 1824, an HBC expedition travelled from Fort George on the Columbia River over the Nicomekl River and down the Salmon River to the Fraser. On the Salmon River they - 31 -
met Kwantlen people living in a series of winter villages. One of these Kwantlen people was Whattlekainum, the head chief of Kwantlen’s village near the mouth of the Pitt River.
84. The expedition then proceeded up the Fraser to a Kwantlen settlement near the mouth of the Stave River, and the expedition later received Kwantlen visitors from a village near Hatzic Lake or Nicomen Slough. They then travelled downriver and were met by Kwantlen people from Chief Whattlekainum’s village at the Pitt River.
85. In 1827, the HBC established their original Fort Langley at Derby Reach, in the middle of their territory, and many (but not all) Kwantlen people gradually moved to be near it. First, some Kwantlen from New Westminster under Chief Tsi-ta-sil-ten moved upriver to be across the Fraser from the Fort, at Kanaka Creek. Later, those Kwantlen living at Katzie (on the Kwantlen River/slough) under Chief Whattlekainim moved to be beside the Fort. And then last, Kwantlen from the Hatzic and Nicomen villages under Chief Nicamous moved to be adjacent to the Fort. When the HBC relocated the fort from Derby Reach to the present Fort Langley site in 1839, the Kwantlen people then living at Derby moved with it, establishing the current main Kwantlen village on McMillan Island.
86. It has sometimes been suggested that it was only after the HBC founded its fort that the Kwantlen expanded upriver from their main village sites around what is now New Westminster. Leading researchers, however, conclude that the move must have occurred prior to contact with Europeans. As Wayne Suttles writes in “The Ethnographic Significance of the Journals”:38
Accordingly the Native tradition (Hill-Tout in Maud 1978, 3:68; Duff 1952:23), the Kwantlen had originally lived on the Fraser River at what became New Westminster, but after the fort was built they moved upriver to be near it, in part for the protection it gave from raiders. It may be true that at an earlier time the main Kwantlen village was downriver, but the move must have come earlier than the tradition has it. In the winter of 1824 the McMIllan expedition encountered Kwantlen people (spelled “Cahoutetts,” “Cahantilt,” etc. by John Work) on the Salmon River, at a village farther up the Frazer at Hatzic Slough, and again farther downriver from a village either on the Pitt or the Brunette River. 7 One of the Kwantlen they met was Whittlekainum (so identified by Alexander
38 C-198-11-3, Ex. pp. 145 (citations removed). - 32 -
McKenzie, who met him again in 1825). Thus two years before the fort was built, the Kwantlen were already wintering in their later territory.
87. Keith Carlson comes to the same conclusion in The Power of Place, The Problem of Time.39
88. Kwantlen people living near the fort – who in time became known as the “Langley people” – became especially important to the HBC as suppliers of fish, cedar bark for roofing material, labour, and wives (a number of Kwantlen families have ancestry from the HBC men at the fort). They were also the major intermediaries between the fort and the First Nations people of the interior, and furs brought downriver often passed through Kwantlen hands before reaching the fort.
89. While the HBC sought to entice the Kwantlen to supply furs to them, in fairly short order the HBC adapted to Kwantlen’s salmon-exchange economy and the fort instead became a salmon trading post. In 1831, approximately 300 barrels of salted salmon were shipped abroad from the fort. 100 of these barrels went to Hawaii, and later locally milled shingles and timber were sent there too. A number of Hawaiian HBC employees (who are called “kanakas”) settled in the Fraser Valley, and some of them married Kwantlen women.
C. Kwantlen’s use and occupation of its territory40
90. With respect to the TMEP route, Kwantlen’s traditional territory spanned from past New Westminster on the north bank of the Fraser, included the TMEP’s crossing point on both sides of the river, and reached all the way to Sumas Mountain on the south side of the Fraser.
91. Hill-Tout, writing in 1902, described Kwantlen as “formerly one of the most powerful and extensive of the river Halkomelem tribes”. He described Kwantlen’s territory this way (as quoted by Suttles in Katzie Ethnographic Notes):
Their territories extended from the mouth of the south-arm of the Fraser and up to the present settlement of Hatzic, which is about sixty miles from the salt water. They consequently occupied or controlled more than half the Halkomelem lands
39 C-198-11-4, Ex. p. 210.
40 The submissions under this subheading C are based on C198-11-1 (Chief Gabriel Statement, Vol. I), paras. 27-41. - 33 -
of the mainland. They touched the Qmuskī-Em (Musqueam) on the north arm, and the SEwā’çEn (Tsawwassen) on the sound on their west; the Kē’tsī on Pitt River, a tributary of the Fraser, which enters the river a little above New Westminster; the Snonkwe’amEtl, of the Indian village of Snā’kwamEtl, a tribe now wholly extinct and well-nigh forgotten; the Mac’quī, whom they drove back from their river front, in their centre; and the NEkā’mEn on their east.
92. The Fort Langley Journals refer to the Langley Indians living around the fort as the “Quoitle tribe”. While every ethnographer has interpreted that reference to mean the Kwantlen, Duff concluded that the traders likely lumped in other local groups that were independent of the Kwantlen, including the Whonnock, sxa’yαks, Matsqui, Hatzic, Nicomen, qeqa’yt, and Coquitlam. Duff stated that this large, amalgamated group “held the river from below New Westminster to Sumas, and the lower Pitt as well.” In Katzie Ethnographic Notes, Suttles disagreed with Duff’s conclusion that the groups listed by Duff were independent of the Kwantlen, and determined instead that “[t]he people of Whonock, Hatzic, etc., were not separate groups lumped with the Kwantlen, but rather villages settled by the Kwantlen on sites formerly occupied by separate groups.” Carlson came to a similar conclusion in The Power of Place, The Problem of Time.
93. Kwantlen ancestors used the lands and waters throughout their territory for settlements, gathering of plant resources, hunting, fishing, transportation, trading, spiritual activities and burial of the dead. The manner of Kwantlen’s use of the territory is summarized in some of the ethnographic reports attached as exhibits to the Chief Gabriel statement. It is very clear from these reports, and Kwantlen oral history (some of which is reflected in the CHOA), that Kwantlen people had a profound and intimate understanding of their territory and that they used it intensively.
94. While Kwantlen people regularly used the lands of their territory for a variety of activities, the waterways – especially the Fraser, but also tributaries like the Pitt River and the Salmon River – were the territory’s backbones. For generations beyond counting, the rivers have sustained Kwantlen people with bountiful salmon, sturgeon and other fish, which not only provided them with food, but also allowed them to trade with other communities. The Fraser and its tributaries have truly been the lifeblood of Kwantlen’s culture, and it is indicative of - 34 -
their importance to the community that Kwantlen’s villages were all located along such rivers.
95. The historical evidence demonstrates that Kwantlen had villages at least at the following locations:
a. Sϰəyəməɬ, which actually comprised three villages at the present site of New Westminster.
b. qəqəyt, in Surrey on the south side of the Fraser, across from Sϰəyəməɬ;
c. Whattlekainum’s village, at the mouth of the Pitt River, on the west bank;
d. At or near where the TMEP crosses the Salmon River, which empties into the Fraser just west of Fort Langley;
e. sqwanəć, at the location of the Kwantlen reserve on McMillan Island;
f. sxeyəqs, at the lower reaches of the Stave River; and
g. xe?ćəq, at Hatzic Slough.
96. Kwantlen claims Aboriginal rights and title throughout its territory, although it acknowledges that certain other communities also have rights and/or title at some locations in the territory. At some locations within the territory, Kwantlen’s rights and title are exclusive, and at others they are shared with other communities. At some limited locations in Kwantlen territory, other communities may have exclusive rights and title.
97. Below are set out a number of areas of particularly intensive Kwantlen occupation along the proposed route for the TMEP.
98. At and around where the TMEP crosses the Fraser. As seen from the Neary Report, Kwantlen people established a number of settlements and engaged in regular resource gathering on the north of the Fraser between Poplar Island and the mouth of the Pitt River. Kwantlen people were the original inhabitants of Poplar Island. At about where New Westminster is they had three villages, in an area generally known as Sϰəyəməɬ. They had a - 35 -
major village at the mouth of the Pitt River, just north of Douglas Island, under the leadership of Chief Whattlekainum at the time of European contact. Kwantlen people also regularly used the area in between Sϰəyəməɬ and Whattlekainum’s village. For instance, “Tree Island”, which the TMEP will pass through as it crosses the Fraser, bears Kwantlen’s named places Ye’lelhkwe and Skwata’xwken.
99. On the south side of the Fraser, Kwantlen people had a village called qəqəyt, which Simon Fraser visited in 1808 and which was situated across from Sϰəyəməɬ. They harvested resources in a broad area around qəqəyt, and the evidence also documents a specific resource gathering site (site 287 in the Neary Report) at about where the proposed TMEP would turn northward to cross the Fraser.
100. The CHOA also outlines extensive evidence of Kwantlen’s occupation of both sides of the Fraser where the TMEP would cross it, including archaeological and oral history evidence.
101. South bank of Parson’s Channel/Surrey. Kwantlen people extensively used an area centered on the south bank of the Fraser across from Barnston Island for fishing, dwelling, transportation and trade activities. As outlined in the CHOA, the evidence of such occupation includes archaeological sites, as well as cultural heritage data.
102. The Walnut Grove/Fort Langley/Salmon River area.
103. According to information provided to Wayne Suttles by a Katzie elder, Simon Pierre, in 1952, the Salmon River was once owned by the sna’kwəmix people (sometimes called the “Snokomish”), whose territory on the Fraser included Kanaka Creek and the Salmon River and extended southward to include the Serpentine and Nicomekl rivers and the eastern shore of Boundary Bay.41 The sna’kwəmix people were wiped out by smallpox prior to the arrival of Europeans (probably during the epidemic of the 1770s), and their territory along the Fraser, including the Salmon River, was taken over by the Kwantlen, who then asserted
41 C-198-11-2, Ex. pp. 98-99 (Suttles, Katzie Ethnographic Notes); C-198-11-3, Ex. pp. 145-146, 193 (Suttles, “The Ethnographic Significance of the Journals” in The Fort Langley Journals); C-198-11-4, Ex. p. 278 (Neary Report). - 36 -
ownership rights over it.42 As outlined in the Neary Report, in 1824 the HBC expedition met Kwantlen people (including Chief Whattlekainum) at a series of winter quarters on the Salmon River. Neary writes:43
When the McMillan expedition arrived at the end of the portage between the headwaters of the Salmon and Nickomekl Rivers on December 15, 1825, en route to the Fraser River, John Work noted in his journal: “The Indians came to us in the afternoon. They are of the Cahoutetts Nation... The only information obtained from them was that their tribe was in detached parties in their winter quarters in the little river, that the large river was not far off.” This statement is interpreted to mean that some of the Kwantlen were spending their winter in camps (“detached parties”) along the Salmon River. Work transcribed the name Kwantlen in his journal in several ways, as Cahoutetts, Cahantitt, and Cahotitt.
104. Later, Kwantlen people occupied the Derby Reach and Fort Langley areas more permanently and in greater numbers when they moved to be near the fort.
105. As can be seen from the CHOA, this entire area is a focal point of Kwantlen use and occupation. They used it for settlements, fishing, berry picking and travel routes, and the evidence their extensive occupation includes archaeological data, named sites, oral history, and substantial archival evidence.
106. As set out further below in these submissions, it is established on the evidence Kwantlen has filed in this proceeding that it regularly used and occupied this area as of 1846, such that it has Aboriginal title over, at the very least, all remaining Crown lands in the area. Such lands include the Salmon River where it would be crossed by the TMEP.
107. Abbotsford/Sumas area. As outlined in the CHOA, there is very extensive evidence of Kwantlen occupation of this area, through which the TMEP would run.
42 C-198-11-3, Ex. pp. 145-146, 193 (Suttles, “The Ethnographic Significance of the Journals” in The Fort Langley Journals); C-198-11-4, Ex. pp. 209-210, 212, 214 (Carlson, The Power of Place, The Problem of Time), Ex. p. 278 (Neary Report).
43 C-198-11-4, Ex. p. 278 (citations removed). - 37 -
D. Conclusions regarding Kwantlen’s Aboriginal rights and title
108. In terms of Aboriginal rights, Kwantlen submits that there really can be no doubt at all that it has the s. 35 right to fish for food, social and ceremonial purposes. The evidence – both historical and contemporary – establishes conclusively that, pre-contact, fishing was integral to Kwantlen’s distinctive culture. It is clear from the evidence that the Kwantlen fished in the lakes and rivers throughout their territory, including in the Fraser and Salmon Rivers. The Board should make that finding, and if it concludes that the TMEP may adversely impact Kwantlen’s fishing, then it must assess whether such an impact is justified according to the Sparrow test.
109. The evidence also identifies a number of other pre-contact practices that were integral to Kwantlen’s distinctive culture and so enjoy protection under s. 35, including:
a. Hunting;
b. Gathering medicines;
c. Travelling over land and over waterbodies;
d. Trading;
e. Spiritual activities;
f. Burial of the dead; and
g. Self-governance.
110. With regard to Aboriginal title, the evidence clearly establishes that Kwantlen has Aboriginal title to at least the Crown land comprising and adjacent to the Salmon River, including where it would be crossed by the TMEP.
111. The ethnographic evidence establishes that the Salmon River was once owned by the sna’kwəmix people, but after they were wiped out by smallpox prior to European contact, the Kwantlen took over ownership. The historical evidence very plainly demonstrates that Kwantlen people occupied the Salmon River as winter quarters when in 1824 the HBC - 38 -
scouting party came through the portage from the Nickomekl River and into the Salmon River en route to the Fraser. At that time, and thereafter through 1846, the Salmon River lay near the centre of Kwantlen territory and was an important north-south travel route, as well as fishing river.
112. There can hardly be clearer evidence of Aboriginal title than the assertion of ownership rights combined with tangible, historical evidence of a settlement site. There can be no serious question that the test for Aboriginal title as set out in Tsilhqot’in is met in respect of the Salmon River. Kwantlen submits that its title to the Salmon River is proven in and for the purposes of this proceeding. Kwantlen asks that the Board make that finding within the context of this proceeding.44 As will be discussed further below, the construction of the TMEP through the Salmon River lands would infringe Kwantlen’s title, as Kwantlen does not consent to the TMEP trespassing on its lands. The Board may therefore only approve the construction of the TMEP through those lands if such trespass is justified according to the test set out in Tsilhqot’in.
113. Kwantlen also has Aboriginal title underlying its reserve lands, all of which lie on the Fraser River and would be adversely impacted in the event of a spill from the TMEP. The evidence tendered in this proceeding is replete that sites on which Kwantlen was allocated reserves were all village sites. It is plain and obvious that, in addition to them having reserve status, Kwantlen holds Aboriginal title to such lands.
114. It is very important to remember that Aboriginal title carries with it the right to determine what will be done with the lands. The rights Aboriginal title conveys include “the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro- actively use and manage the land.”45 In short, title conveys to the Aboriginal group “the
44 Kwantlen is not asking that the Board make a declaration of Aboriginal title generally.
45 Tsilhqot’in, para. 73 (underlining added). - 39 -
right to control how the land is used”.46 There is necessarily a self-governance component to Aboriginal title that must be respected.
115. Kwantlen also asserts Aboriginal title to the other lands in its territory – especially those that remain publicly owned – over which the TMEP will run. If the evidence it has tendered in this proceeding regarding the other lands in Kwantlen’s territory is not sufficiently precise and extensive to prove the existence of Aboriginal title, then at the very least it establishes a very strong claim. With respect to its territory from Sumas Mountain in the east and New Westminster in the northwest the evidence is very clear that:
a. That territory was considered by neighbouring First Nations to be Kwantlen territory. That is, in the words of the Tsilhqot’in decision, Kwantlen “historically acted in a way that would communicate to third parties that it held the land for its own purposes”, and so meets the sufficiency of occupation test. It also had “the intention and capacity to control the land”, and so meets the exclusivity test.
b. Kwantlen had a very strong presence on the land, as demonstrated by its villages throughout the territory and the historical evidence of its regular use of the territory. As the Court stated in Tsilhqot’in at para. 42, “regular use of territories for hunting, fishing, trapping and foraging is “sufficient” use to ground Aboriginal title”. The ethnographic and historical evidence and the CHOA point very clearly and strongly to such use of the whole territory by Kwantlen.
116. The Board should therefore find that Kwantlen has strong claims to Aboriginal title to publicly-owned lands on and beside the TMEP route between Sumas Mountain in the east and New Westminster (AK1175) in the northwest. As will be set out further below, given the depth of the TMEP’s impacts on those lands, Kwantlen is entitled to the deepest level of consultation in respect of the TMEP.
46 Ibid., para. 75. - 40 -
PART IV: THE TMEP’S IMPACTS ON KWANTLEN’S TITLE AND RIGHTS
A. Kwantlen people’s attachment to their territory47
117. Modern, non-Aboriginal people probably find it quite difficult to fully comprehend the connection that Kwantlen’s ancestors had with their lands and waters. In modern times and from a western perspective, land is treated as a commodity that can be bought and sold, and if an area is not to one’s liking one can simply move somewhere else. Land is also viewed in modern times as something to be transformed to suit human needs. Land is cleared and leveled for farming, paved over for roads, and planted for gardens. In the modern world, very little food comes from the wild – some fish being an exception. Otherwise, almost all of the food comes from farms at which the natural processes of rainfall, growth and fertilization are subjected to intensive human management and intervention.
118. In the modern world, land is often treated simply as space. Certainly there is some land which is prized for having a good view or good soil. But the essential characteristic of land in the modern world is that it is space that can be transformed to accommodate human needs and desires.
119. Kwantlen people view their lands and waters very differently. Certainly their ancestors did engage in some transformation of the land: they built village sites, erected weirs across rivers, and managed berry and potato patches. But fundamentally Kwantlen’s ancestors lived off of what the land and waters provided for them. They had an immensely sophisticated knowledge of the territory and its seasonal changes and a cultural and spiritual connection to them, and they moved throughout the territory to harvest its resources according to that knowledge and connection. But if the sockeye did not return in ample numbers in a given year, for example, then they suffered from hunger and illness.
120. If one imagines for a moment that level of dependence upon the land, then one might be able to glimpse the intensity of the profound connection that Kwantlen ancestors had with it. That connection includes a deeply spiritual relationship with the land. Indeed, long ago there was
47 The submissions under this subheading A are based on the statement of Chief Gabriel at C198-11-1, pp. 9-11, paras. 42-51, as well as on statements of Eileen Thomas (C198-11-10), Farley Antone (C198-11-11) and Brandon Gabriel (C198-11-9). - 41 -
no boundary between humans and plants, animals and even elements of the land itself, such as mountains. Kwantlen people have a great many stories that record transformations between, for instance, humans and the salmon. And these stories took place in and around their territory; the stories name features of the landscape that root them, and Kwantlen people, in their lands.
121. These stories underpin and are the foundation of Kwantlen people’s relationship with their specific territory. According to Kwantlen belief, everything in their territory – the animals, the plants, rivers and even the rocks – has a spirit and deserves Kwantlen people’s care and consideration. Kwantlen people feel deep gratitude for what the lands and waters provide to them, and their customs dictate a great many occasions in which they give thanks to the land and its animals and plants for sustaining them. They also believe that they must take care of their territory and all that is within it. While they speak of their lands as belonging to them, they also believe that they belong to their lands. Accordingly, a teaching expressed in a well- known Stó:lō phrase in the upriver Halq̓ eméylem dialect is “S’olh temexw te ikw’elo. Xolhemet to mekw’stam it kwelat.” (“This is our land. We must look after everything that belongs to us.”)
122. This sense of care and responsibility for their territory is fundamental to Kwantlen’s distinctive society. When Kwantlen people consider their territory, they do not view it as being subject to their management in the sense of entitling them to exploit it. Rather, they believe that they have a responsibility to manage the territory in the sense of caring for it. This is fundamental to their identity as a people.
123. This ethic of care for the land is increasingly strained today. Kwantlen ancestors lived at the centre point of colonization on the mainland of British Columbia. Their lands have been settled and developed without their consent, they have been polluted and degraded by settlers, and settlers have dramatically depleted the animals, fish and resources on which Kwantlen people depended for so long. Fishing – which for generations beyond counting was guided by Kwantlen people’s ethic of responsibility for the fish – is now regulated by the Department of Fisheries and Oceans, and according to their regulations Kwantlen people may only fish when DFO allows it, or else they will be prosecuted. Further, many Kwantlen - 42 -
people were compelled to attend missionary schools, in which they were taught ethics fundamentally different than, and indeed in many ways inconsistent with, the ethic of care that is so fundamental to Kwantlen belief.
124. Despite all of these pressures, however, Kwantlen people’s relationship to their territory continues. When Kwantlen people go fishing on the river, for instance, many experience an intense feeling of belonging and of rightness, and a sense of connection to place because their identity as a people and as Kwantlen individuals is rooted in their respectful use of the territory that has sustained their people for generations. By using the territory in such ways, they affirm to one another who they are as a people, and they seek to pass on to their young ones their stories, way of life and ethic of care that are so fundamental to their identities.
125. In recent decades Kwantlen people have sought to strengthen their knowledge of their territories and to reinvigorate their connection with them. Many of their people are involved in the Longhouse, and some regularly travel into the mountains to fast and engage in other spiritual practices. Some of their people gather traditional medicines from the land, although they must now travel relatively far afield to do so, as such medicines must come from pristine locations. And as a community, they continue to use their territories as intensively as they can, given the constraints imposed by the residential, agricultural, industrial and transportation development in the territory. Kwantlen’s fishers and hunters are highly active on the land and particularly on the rivers.
126. Kwantlen seeks to keep the ethic of care for the land alive in its younger generations, and many of its parents and Elders make very strong efforts to do so. But it is challenging work. It is very difficult to foster that sense of responsibility for the land when all around them the land is transformed and degraded without their consent.
B. Kwantlen’s history after 184648
127. Gold was discovered in the Fraser Canyon in 1857, and the news of the discovery soon reached the gold miners in California. The result was a tidal wave of prospectors that came
48 Except where otherwise noted, the submissions under this subheading A are based on the statement of Chief Gabriel at C-198-11-1, pp. 11-27, paras. 52-93. - 43 -
the next season, in 1858. The gold rush greatly concerned Governor Douglas about the influx of American prospectors and the consequential threat to Britain’s control over the mainland. But what for Governor Douglas was a threat to Britain’s control over a territory it aspired to possess was for Kwantlen a threat to the homeland of generations of Kwantlen’s ancestors and to their way of life. While the Fraser Valley gold rush only lasted a couple of years, it spurred a massive influx of settlement into the area that remained after the gold rush ended in about 1860. The population of the Fraser Valley tripled during those few years. Fort Langley was the starting point for the Fraser Canyon gold fields, and prospectors flocked to it. Tensions were very high. Prospectors traded alcohol to Stó:lō people. A Stó:lō Coast Salish Historical Atlas (the “Atlas”) reports that “[i]solated acts of violence expand to become organized brigades of American soldiers embarking on a ‘war of extermination’ against the Stó:lō. Open battles ensue in the Fraser Canyon.”
128. Concerned about the threat to its interests, in August of 1858 the British Parliament revoked the HBC’s monopoly and passed an act providing for a Crown colony on the Pacific mainland. The ceremony took place on November 19, 1858 at the Big House at Fort Langley, in the heart of their territory. The BC mainland was proclaimed a colony, and James Douglas was appointed its first governor.
129. Following Stó:lō protests over the actions of some miners, Governor Douglas promised to protect certain lands as exclusively Stó:lō, and he began the process of reserve creation.
130. In February 1859, Governor Douglas enacted Proclamation No. 13, declaring that “[a]ll lands in British Columbia, and all the mines and minerals therein, belong to the Crown in fee.” The Proclamation also allowed Douglas to reserve Crown lands.
131. Governor Douglas enacted the Pre-emption Act on January 4, 1860. The Act permitted settlers to pre-empt up to 160 acres of unoccupied and unsurveyed Crown land, with the express exception of townsites, mining land and Indian reserves and settlements. The result was that settlers began to claim and develop land in Kwantlen territory. For instance, early in the 1860s settlers began to pre-empt land on most of the shoreline in the area of Fort Langley, including the mouth of the Salmon River. Some settlers applied to pre-empt land on McMillan Island itself, but were denied. - 44 -
132. In 1861, Kwantlen hosted a great potlatch on McMillan Island, at which nearly 4,000 First Nations people from throughout the Fraser Valley attended.
133. Some reserves were allocated to the Kwantlen by Colonel Moody in the early 1860s: New Westminster (I.R. #8) in 1861, and Whonock (I.R. #1) and McMillan Island (I.R. #6) in 1862. Brew allocated to Kwantlen their Langley reserve (#5) in 1864.
134. In 1863-64, Governor Douglas acknowledged in Queen Victoria’s name that First Nations people deserved lasting support and benefit. The Stó:lō were led to believe that treaties would be signed compensating them for the loss of their land. At the same time, however, many settlers were arriving from Britain, having been promised by Governor Douglas good, cheap farmland in the Fraser Valley. Many of these settlers did not register their pre- emptions right away, but rather traveled up the Fraser Valley, selecting the land they want and proceeding to build homes and clear land.
135. In 1864, Governor Douglas concluded that he would not raise the necessary funds for treaties, and he decided instead to defer the process and create relatively large reserves, as identified by Stó:lō leaders. Before these reserves could be officially registered, however, Douglas retired and his surveyor, William McColl, died. Joseph Trutch was then appointed Chief Commissioner of Lands and Works with jurisdiction over land development and Indian Affairs.
136. The result was a disaster for Stó:lō people, including Kwantlen, as Trutch went on to dramatically reduce the reserves set aside by Colonel Moody under Governor Douglas.
137. Following Douglas’ retirement, criticism had mounted among the settler community over the reserves he had set aside. For instance, a December 1865 article in the British Columbian railed:
One of the very last official acts of our late Governor was to send a couple of surveyors up to the Masque and Chilliwhack prairies, probably the most extensive and really valuable open land in the colony, with instructions to survey off as Indian reserve whatever lands the Indians themselves might point out!... and the result is that it would be difficult, in all that extensive range of prairie, for a settler to find room for a farm of the most modest dimensions without coming in collision with a so-called Indian reserve; and so extravagant were the Indians in - 45 -
their notions that in some instances, we are assured, the reserve amounts to about a thousand acres to each man...
138. On February 11, 1867, John Robson, a representative from New Westminster, presented a Resolution to the Legislative Council, moving that “an address be presented to His Excellency the Governor, urging the desirability of having the Indian Reserves of the Colony reduced to what is necessary for the actual use of the Natives, and to have such Reserves properly defined, the remainder to be thrown open for settlement.”
139. In February of 1867, 22 Stó:lō, including the Chief of the Langley band (as Kwantlen was then known), along with 32 chiefs of other tribes, sent a petition to Governor Seymour, stating in part:
The white men tell many things about taking our lands: our hearts become very sick. We wish to say to Governor Seymour: please protect our lands. Many are our children and some go to school, one of them has written this.
We do not like to pay money to carry lumber and other things in our canoes on the river of our ancestors.
We like to fish where our fathers fished.
140. The petition was to no avail. In 1867, Trutch refused to recognize the legitimacy of the original reserves and he had them resurveyed and many of them were reduced. Indeed, Stó:lō reserves were reduced by 91% without Stó:lō consent.
141. Two of Kwantlen’s colonial reserves were reduced by Trutch, and one of the reserves set aside by Colonel Moody – the Saamoquâ reserve – disappeared altogether under Trutch’s administration. The details of these events are set out in detail in the Colonial Reserve Report.49
142. The reduction in Kwantlen’s land base was the subject of much outrage. For instance, the Whonock reserve set aside in 1862 was 160 acres large. This was a miserly amount of land, given Kwantlen unceded rights to its territory, and especially in light of the Pre-emption Act, which allowed a single settler to pre-empt as much land (160 acres) as was set aside for the
49 Exhibit I to Chief Gabriel’s statement (C-198-6, Ex. p. 326). - 46 -
whole Whonock community. (Indeed, a man named Cromarty did pre-empt 160 acres beside the Whonock reserve, and his son pre-empted 160 acres more adjacent to it, so that together they had 320 acres.) But although the reserve was already small, Trutch reduced it by 42.5%, to 92 acres. Further, the land cut-off from the reserve contained many of the best lands, including those already under cultivation by the Whonock people.
143. On December 6, 1868, immediately following the resurvey of the Whonock Reserve, the community there sent a petition to the Governor Seymour, which read in part:
... Governor Douglas did send some years ago men among us to measure our reserve and although they gave us only a small patch of the land in comparison to what they allowed to a white man our neighbour, we were resigned to our lot, consequently your memorialists build new houses, cultivate the land to raise potatoes for themselves and their children, and make, if possible, some money selling the excess.
Some days ago came new men who told us by order of their Chief they have to curtail our small Reservation, and so did to our greatest grief; not only they shortened our land but by their new paper they set aside our best land, some of our gardens, and gave us in place, some hilly and sandy land, where it is next to impossible to raise any potatoes: our hearts are full of grief day and night, and in fact we have been many days without being about to sleep.
Your memorialists hope that such orders did not come from your Excellency, whom they have been accustomed to regard as their Father. They cannot believe that such [an] act as this could be approved by their first Chief the Queen whom yourself did represent to them as being so gracious and so well disposed toward her children of the forest.
144. In August of 1869, the Whonock community made an application to the Department of Lands for a portion of the land which had been cut-off to be added back onto the reconfigured reserve. The application stated in relevant part:
1. That long before 1862, your petitioners have had their homestead at the entrance of Shelik Creek, on the bank of Fraser River.
2. In 1863, a white man named Cromarty came and took, as his claim, the land upon which our house and gardens were.
3. Having complained to Judge Brew, he gave us, to protect our land against any white man, a note, of which we give a copy underneath. - 47 -
4. Cromarty left our land and abandoned his claim but some time after another white man took it, and after him came Mr. Brady, the actual occupant of our land who assured us that he bought the land and we had no further right on it.
5. Being driven away from our land, we commenced to cultivate a part of the land situated below Brady’s claim, but seeing that in spite of the note given us which we believed would secure our land to us, we have been dispossessed of it and fearing the same thing may happen to us again regarding our present place, and then find ourselves without any land, we humbly pray your Honour to have our new place surveyed and marked out as soon as possible.
6. We would respectfully demand that our reserve be so marked as to extend along the Fraser, from the corner post of Brady’s claim to the corner post of the reserve already surveyed for Whonock Indians.
The portion of land we now ask for namely, from corner post of Brady’s to the corner post of Whonock Indian Reserve, is unoccupied by any white man. Brady himself has advised us to make application to obtain the land as our reserve, in order to put an end to any future disputes of rights and prevent us hereafter from being overwhelmed with grief and sorrow on seeing ourselves without an land to cultivate. Firmly believing that your Honour will listen to their request and will cause our reserve to be marked out immediately, your petitioners will ever pray.
145. Government Agent Bushby forwarded this petition to the Governor, noting that Bushby was unable to trace any record for the land in the Pre-Emption Records, and so he recommended that “the land in question be reserved for the Indian applicants”. Despite Bushby’s recommendation, Governor Seymour denied the application.
146. Throughout the 1860s, the colonial government became increasingly concerned that the First Nations people in the Fraser Valley were “pre-empting land as quickly and freely as the whiteman”. Consequently, Joseph Trutch reversed Governor Douglas’ policy of allowing First Nations people to pre-empt land.
147. For instance, the Colonial Reserve Report details how in 1865 an apparently Katzie member obtained special permission to pre-empt land on Brae Island, to the west and across the slough from Kwantlen’s reserve on McMillan Island. (In 1870, An Ordinance to Amend and Consolidate the Laws Affecting Crown Lands in British Columbia reflected the then legal regime, expressly stating that “such right of pre-emption shall not be held to extend to any of the Aborigines of the continent, except to such as shall have obtained the Governor’s special permission in writing to that effect.”) In an 1875 official report for the new provincial - 48 -
government, Attorney General Walkem used this pre-emption as an example of how, with special permission, First Nations people could pre-empt land. The report stated: “the practice of giving these permissions has been discontinued, lest it should interfere with the Dominion policy of concentrating the Indians upon Reserves.” (emphasis added)
148. As seen in the petitions already quoted, in the mid-1860s, Kwantlen’s chiefs – along with the chiefs of other bands – began sending many petitions to various governmental representatives seeking adequate reserves. A number of themes can be seen in these petitions. First, Kwantlen people were desperate to have land set aside for them, as they were witnesses the massive influx of settlers that were taking up the best land and pushing Kwantlen people to the margins. Second, Kwantlen people wanted compensation for what had been taken from them. Third, they wanted to ensure that the land set aside for them was adequate to enable them to support their communities. The Pre-emption Act allowed an adult male settler to pre-empt 160 acres for himself. Kwantlen people also wanted an adequate amount per family, although sometimes they moderated their demands and sought only half as much per family as the settlers could acquire; still, however, that was not provided. In general, Kwantlen people were highly distressed at the haphazard and miserly manner in which reserves were being allocated. Fourth, Kwantlen people wanted protection for their most important resource – the fish. They began to see commercial fishers bring enormous fishing power to bear on the stocks, while the government increasingly sought to restrict fishing by First Nations people. This was a bitter grievance for them, and remains one today.
149. In 1870, a number of chiefs – including the Chief of Langley – signed a petition to Governor Musgrave complaining about the sale of cranberry patches in their territories:
The petition of the undersigned Chiefs of the Indian tribes residing in the vicinity of the valley of the Fraser humbly sheweth that a report having been circulated to the effect that the land from which we now gather the cranberries by the sale of which we are enabled to gain the means of buying food for the winter months are to be sold or leased.
We therefore crave permission to represent to your Excellency that if this great hardship is to be visited upon us, it will bring starvation to our women and children for whom food is more especially provided, and take away from our people generally an important means of employment. We would also humbly - 49 -
suggest that the land in question may be reserved for our use as they are unfit for any purpose, but that of cranberry’s cultivation.
150. In 1873, the chiefs of a number of First Nations – including Chief Basile of Whonok – petitioned the Superintendent of Indian Affairs, stating in part:
We have been anxiously wishing to see you as we have been longing for a Chief, who will truly have at heart our Interests so long neglected for the past.
The white men have taken our land and no compensation has been given us, though we have been told many times that the great Queen was so good she would help her distant children the Indians.
White men have surrounded our Villages so much as in many instances especially on the Fraser River but few acres of Land have been left us.
We hope that you will see yourself our wants and our desires, and you will remove that veil of sorrow which is spreading over our hearts.
151. In 1874, Celestin, the Chief of Langley, and Chief Basilee of Whonock, sent a petition to the Superintendent of Indians Affairs, complaining about the reserve allocations. The petition was signed by 54 chiefs of other First Nations. It stated in relevant part:
1. That your petitioners view, with a great anxiety, the standing question of the quantity of land to be reserved for the use of each Indian family.
2. That we are fully aware that the Government of Canada has always taken good care of the Indians, and treated them liberally, allowing more than one hundred acre per family; and we have been at a loss to understand the views of the Local Government of British Columbia, in curtailing our land so much as to leave many instances, but few acres of land per family.
3. Our hearts have been wounded by the arbitrary way the Local Government of British Columbia has dealt with us in locating and dividing our Reserves [Ohamil], ten miles below Hope, is allowed 488 acres of good land for the use of twenty families: at the rate of 24 acres per family; Popkum, eighteen miles below Hope, is allowed 369 acres of good land for the use of four families, at the rate of 90 acres per family; Cheam, twenty miles below Hope, is allotted 375 acres of bad, dry, and mountainous land for the use of twenty-seven families, at the rate of l3 acres per family; Yuk-Yuk-y-yoose, on Chilliwack River, with a population of seven families, is allowed 42 acres: 5 acres per family; Sumass, at the junction of Sumass River and Fraser, with a population of seventeen families, is allowed 4 3 acres of meadow for their hay, and 32 acres of dry land; Keatsy, numbering more than one hundred inhabitants, is allowed 108 acres of land. Langley and Hope - 50 -
have not yet got land secured to them, and white men are encroaching on them on all sides.
4. For many years we have been complaining of the land left us being too small. We have laid our complaints before Government officials nearest to us; they sent us to some others; as we had no redress up to the present; and we have felt like men trampled on, and are commencing to believe that the aim of the white men is to exterminate us as soon as they can, although we have always been quiet, obedient, kind, and friendly to the whites.
5. Discouragement and depression have come upon our people. Many of them have given up the cultivation of land, because our gardens have not been protected against the encroachments of the whites. Some of our best men have been deprived of the land they had broken and cultivated with long and hard labour, a white man enclosing it in his claim, and no compensation given. Some of our most enterprising men have lost part of their cattle because white men had taken the place where those cattle were grazing, and no other place left but the thickly timbered land, where they die first. Some of our people now are obliged to cut rashes along the bank of the river with their knives during the winter to feed their cattle.
6. We are now obliged to dear heavy timbered land, all prairies having been taken from us by white men. We see our white neighbours cultivate wheat, peas, &c., and raise large stocks of cattle on our pasture lands, and we are giving them our money to buy the flour manufactured from the wheat they have grown on the same prairies.
...
8. We consider that 80 acres per family is absolutely necessary for our support, and for the future welfare of our children. We declare that 20 or 30 acres of land per family will not give satisfaction, but will create ill feelings, irritation amongst our people and we cannot say what will be the consequence.
152. In 1875, Chief Alexis of Cheam wrote to the Indian Commissioner on behalf of the other chiefs of the Lower Fraser on the subject of the Queen’s birthday and the manner in which his people were being treated:
We have heard that you have obtained from the Dominion some money in our name in order that we should celebrate properly the Queen's Birthday.
We come to inform you that we do not wish to celebrate the Queen's day. She has not been a good mother and Queen to us, she has not watched over us that we should have enough land for the support of our families. She knows that the British Columbia Government has deprived us of our land leaving but few acres and in some cases not even one acre per head; she knows that we have made a - 51 -
petition nearly one year ago praying that eighty acres [go] to every family. She has not yet said a word in our favour. If she is so great as we have been told, she must be powerful enough to compel the British Columbia Government to extend our present Reserves so that every Indian family will have eighty acres of land.
We come to tell you to send back the money the Dominion allowed for the celebration of the Queen's day. We do not wish it to be spent for us as long as our land question is not settled according to our wishes.
We are in sadness and our sadness is growing to an irritation of feelings and to despair and you know despair is a bad advisor. White men are coming in great numbers and take all the land around our villages. If our land question is not settled immediately there will be no possibility to extend our present insufficient reserves. We will be forced to act as Seashell Indians have done with just reason this winter, drive out every whiteman who would try to pre-empt the lands we wish to have outside our present Reserves.
We write to you as we have no confidence in the other Indian Commissioner. He has been pulling [?] along with British Columbia Government. He willingly accepted in our name the allowance of the local Government 20 acres for a family of five members- four acres per head!!! and he went on helping the local Government. Sent surveyors to divide some Indian Reserves in 20 acre lots. Not telling us a word about it - not asking our consent, though he was perfectly aware that we would never agree to such terms. Alexis, one of the chiefs, proved to him at Yale in July that 20 acres of family of five members or four acres per head was a mockery, was destruction to the Indian races.
153. Construction of the Canadian Pacific Railway began in the early 1880s and was completed in 1885. The result was a sudden and massive increase in the number of settlers coming into Stó:lō territory. The non-Aboriginal population of BC soon – in 1891 – exceeded the Aboriginal population.
154. In the 1880s Kwantlen people began to experience the effects of non-Aboriginal interest in controlling the fisheries. While Kwantlen people had traded fish with the HBC and later with the canneries, non-Aboriginal fishing power was growing all the time. In 1886 the Department of Indian Affairs reported that, due to overfishing by the commercial industry, the Fraser River salmon runs were almost a complete failure. The report stated that “[t]he number [of salmon] taken by the Indians is not one fourth the usual quantity.”
155. Two years later, in 1888, the Fisheries Act was amended to ban the sale of fish caught in non-tidal waters. The Act also enforced a previous amendment that made it illegal for fishers - 52 -
– including Aboriginal fishers – to sell fish caught without a licence. As the Atlas states: “It thus creates an artificial ‘Indian food fishery’ by making it illegal for Aboriginal people to sell fish. This legislative change effectively removes the Stó:lō from the legitimate commercial salmon industry.”
156. The decline in Stó:lō fisheries continued in the early 20th century. In 1902, a number of chiefs – including Chief Cassimere of Langley, as well as Chief Phidell of Whonock – sent a letter to the Minister of Marine and Fisheries, stating in relevant part:
We, the undersigned, respectfully beg to call your attention to the alarming increase of deep nets in use this season by Cannerymen and private individuals, to the great injury of us poor fishermen who can ill afford to go to the expense of buying so costly an outfit by the present unwarrantable depth of the nets when in the water.
The depth of the nets we complain of, are from 70 meshes to 110 meshes, thus when in action, dragging along the river bed and giving but very little chance to those fishermen using nets of lesser depth to catch any fish, also preventing the surplus fish on their way up from reaching the spawning ground in tl1e interior waters.
...
What we are anxious for the Department to do, towards all parties concerned, is to adopt a uniform depth of nets of not more than 60 meshes to be used in the future. This will give all an equal chance and leave a big margin of space to allow fish not gilled to pass on to the spawning beds. Unless this plan is adopted, the Salmon industry will be greatly injured in the future.
157. In 1912, extreme overfishing by the commercial industry devastated the Fraser River salmon runs. The fishery was further devastated in 1914, when construction of the Canadian National Railway through the Fraser canyon triggered a landslide at Hell’s Gate that largely blocked the salmon’s access to their spawning grounds. The landslide dramatically reduced salmon populations for decades, until fish ladders were built in 1946.
158. As with the CPR, the CNR dramatically increased the pace of settlement in Kwantlen territory. It alienated further land from Kwantlen, this time on the southeastern bank of the Fraser. - 53 -
159. In 1911, a large number of BC First Nations sent a petition to the federal Minister of the Interior, urging the federal government to settle the still-outstanding Land Question. The petition reflects Kwantlen’s concerns. The petition is long, and it is worth quoting parts of it at some length:
We ask for the same treatment that has been accorded to other Canadian Indians in the settlement of our land question, and in other matters. We know your government is strong, and has the power to treat us who are weak as it suits them; but we expect good and not evil from them. We regard you as a father appointed to look after our interests, that we may not be oppressed and imposed upon by others. We believe the settlement of our grievances will result in benefit to the whites of this country, as well as to us.
...
You know how the BC government has laid claim to all our tribal territories, and has practically taken possession of same without treaty, and without payment. You know how they also claim the reservations, nominally set apart for us. We want to know if we own any land at all in this country. As a last chance of settling our land question with the BC government, we visited them in Victoria on the third of March last, and presented them with a petition (a copy of which we believe has been sent to your government), asking for a speedy settlement. Forty of us from the interior waited on the government along with the Coast Indians. In this letter we wish to answer some of the statements made to us by the BC government at this interview.
Premier McBride, speaking for the BC government, said: "We Indians had no right or title to the unsurrendered lands of the province." We cannot possibly have rights in any surrendered lands, because in the first place they would not be ours if we surrendered them, and, secondly, we have never surrendered any lands. This means that the BC government asserts that we have no claim or title to the lands of this country.
Our tribal territories which we have held from time immemorial, often at cost of blood, are ours no longer if Premier McBride is correct. We are all beggars, and landless in our own country. We told him through one of our chiefs we were of the opposite opinion from him, and claimed our countries as hitherto. We asked that the question between us be submitted for settlement to the highest courts, for how otherwise can it now be settled? His answer was: "There was no question to settle or submit to the courts." Now, how can this be. That there is a question is self evident, for Premier McBride takes one side of it, and we take the other. If there was no question, there would have been nothing to talk about; and nothing to take sides on. We wish to tell you, Chief, this question is very real to us. It is a live issue. The soreness in our hearts over this matter has been accumulating these many years, and will not die until either we are all dead, or we obtain what - 54 - we consider a just settlement. If a person takes possession of something belonging to you, surely you know it, and he knows it, and land is a thing which cannot be taken away, and hidden. We see it constantly, and everything done with it must be more or less in view. If we had had nothing, or the British Columbia Government had taken nothing from us, then there would be nothing to settle, but we had lands, and the British Columbia Government has taken them, and we want a settlement for them. Surely then, it is clear there is a question to be settled, and how is it to be settled except in the courts?
Mr. McBride made the statement, “We Indians were well satisfied with our position, and that the present agitation among us was fomented by certain whites." We deny this statement completely - it is not true. The fact of our visiting the Victoria Government - many of us from long distances, and at great expense - shows that we are not satisfied. As we have stated before, we never have at any time been entirely satisfied with our position, and now that the country is being more and more settled up, and we becoming more restricted in our liberties year by year, we are very far from satisfied. Why should we be satisfied? What have we received, and what has been done for us to make us satisfied? All the promises made to us when the whites first came to this country have been broken. Many of us were driven off our places where we had lived and camped from time immemorial, even places we cultivated, and where we raised food, because these spots were desirable for agriculture, and the Government wanted them for white settlers. This was done without agreement with us, and we received no compensation. It was also in direct opposition to the promises made to us by the first whites, and Government officials, that no white men would be allowed to locate on any place where Indians were settled or which were camping stations and gardens. Thus were we robbed by the Government, and driven off many of our places by white settlers (backed by the Government), or coaxed off them with false promises. Then we were promised full freedom to hunt, fish and travel over our country unrestricted by regulations of the whites, until such time as our lands were purchased or at least until treaties were made with us. Another promise broken, and so on with all. We can tell you all of them if you want to know, and prove them through witnesses still living. What of Governor Seymour's promises made to the Lower Fraser Indians who convened at his request purposely to hear his message to them concerning the proposed policy of the whites towards the Indians of this country? They rank with other early promises all broken. This is enough to show there is a sufficient reason for our dissatisfaction, and also that it required no white men to point out these things to us, and urge us to be dissatisfied ...
...
What we know and are concerned with is the fact that the British Columbia Government has already taken part of our lands without treaty with us, or payment of any compensation, and has disposed of them to settlers and others. The remaining lands of the country, the Government lays claim to as their property, and ignores our title. Out of our lands they reserved small pieces here - 55 -
and there, called Indian Reserves, and allowed us the occupancy of them. These even they claim as their property, and threaten in some places to take away from us, although we have been in continuous occupancy and possession. No proper understanding was arrived at, nor proper agreements made between ourselves and the British Columbia Government, when the reserves were laid off. Not one of us understood this matter clearly nor in the same light the British Columbia Government seems to have done. Things were not explained to us fully, and the Government's motives appear to have been concealed, for they were understood differently by the various chiefs. We never asked for part of our country to be parceled out in pieces and reserved for us. It was entirely a Government scheme originating with them. We always trusted the Government, as representing the Queen, to do the right thing by us, therefore we never have opposed any proposition of the Government hastily and without due consideration. We thought, although things appeared crooked, still in the end, or before long, they might become straight. Today were the like to occur, or any proposition be made to us by the Government, we would not trust them; we would demand a full understanding of everything, and that all be made subjects of regular treaty between us and them. Mr. McBride claimed many reserves are larger than the Indians need, and much of the land remains unoccupied. We of the Interior claim this is not so. We think we at least should have as much land of our own country to farm as is allowed to white settlers (viz.: 160 acres), or as much as our Indian friends of Eastern Washington, Idaho, and Montana retain on the opening of their reserves (viz.: from 80 to 150 acres of the best agricultural land available, chosen by themselves, for each man, woman and child). At the time the Indian Reserves of British Columbia were set apart, and for long afterwards, the British Columbia Government allowed 320 acres of land to each white person pre-empting land from them. As at this time our population was much greater than now, the amount of reservation land per capita would be smaller in proportion, and the farce of the Reserves being adequate when set apart all the more apparent. We ask Mr. McBride to state the amount of good land in the Reserves which can be successfully cultivated by us under present conditions. Why should we be expected to make a good living on four or five acres of land, whilst in 1881 and later 320 acres was deemed none too much for a white man? Pasture need not be taken into consideration at that date, as then the unfenced range country formed a sufficient pasturage, and was used equally as much by whites as by Indians. A few of the reserves may appear large on paper, but what amount of good land is in them? Most of them consist chiefly of more or less barren side hills, rock slides, timbered bottoms hard to clear, and arid flats devoid of water for irrigation. In very few places do we have any chance to have good farms, and they must of necessity be small in area. Either the land or the water is lacking. In many places even the total acreage of the reserves is exceedingly small. All parts of all reserves known to us are used by us one way and another as fully as possible, considering our present disadvantageous position, and the nature of the lands. If by occupancy Mr. McBride means actual living on or cultivating of each part of reserve, then we plead guilty to our inability to occupy the greater part of them, for we cannot live on and cultivate rocks, side hills and places where we can get - 56 -
no water. Even in many places that we do occupy fully, and cultivate continually, we lose our crops altogether, or in part, every year, owing to whites taking the irrigation water, and stopping us from using it when we most require it under the claim of prior right to the water. In this they are sustained by the British Columbia Government who recognize their water records as superior to ours. Mr. McBride also said the Indians share in enjoying the advantages arising from building of railroads, wagon roads, trails and other Government utilities. Perhaps we do, but have we not assisted in building them, and have they not been built up from the direct robbery of ourselves, and our country? We claim these things are rightfully ours, and yet we are made to pay for using them. Had we never assisted in the making of these railways and roads; had his Government paid us for all our timber that was used, and all our fifty millions of gold taken out of this country, and all our salmon that has been caught, and destroyed, and many other things which might be mentioned that went into the making of these roads; had we been paid only a small share of all this wealth derived from the destruction (in most cases), not the improvement of our country; or had the country been bought from us, so it were actually the property of the whites to destroy or do with as they pleased, then the British Columbia Government might speak of our sharing in the benefits of roads to which they infer we are in no way entitled. Good trails we had in plenty before the whites came. The whites are indebted to us for having them ready made when they came, and allowing them to use them without charge. The wagon roads benefit us but little, for most of them do not go to our reserves, and besides, we have no chance to have much produce to haul over them. Railroads have not helped us much. They cut up our little farms, and give us no adequate compensation. They have killed many of us, and also many of our horses and cattle since their advent. Besides they act as highways for robber whites, and all kinds of broken men who frequently break into our houses and steal from us.
We never asked that any of these things be built so we could share in them, and we well know they were not built for our benefit. Government utilities such as the police, for instance, we see no benefit in, for they are used to force laws on us we never agreed to, and some of which we consider injurious and unjust. This, then, appears to be all the British Columbia Government can claim to have done for us, viz: They let us use a few inferior spots of our own country to live on, and say we ought to be grateful to them for giving us such large pieces. They made some roads of various kinds for themselves, and say we ought to be grateful for being allowed to share in the use of them. We ask is this the brotherly help that was promised us in early days, or is it their compensation to us for the spoilation of our country, stealing of our lands, water, timber, pastures, our game, fish, roots, fruits, etc., and the introduction of diseases, poverty, hard labour, jails, unsuitable laws, whisky, and ever so many other things injurious to us? Now you have the British Columbia Government's statements re: these questions, and you have our statements. We leave it to you to decide who has done wrong. We or they. We desire a complete settlement of our whole land question, and the making of treaties which will cover everything of moment to us in our relations between the whites of this country as represented by their Governments, and we as Indian - 57 -
tribes. As the British Columbia Government through Mr. McBride has refused to consider any means of settling these matters legally, we call on the Dominion Government at Ottawa - the central and supreme Government of Canada - to have the question of title to our lands of this country brought into court and settled. We appeal to you for what we consider justice, and what we think you would yourself consider justice if you were in our position. Who has the power to help us in this matter?
Only the Federal Government, and we look to them. As the building of railways, and settlement in this country is proceeding at a rapid pace, we wish to press on you the desirability (for the good of all concerned) of having these matters adjusted at as early a date as possible. In the hope that you will listen to our earnest appeal, we, the underwritten chiefs, subscribe our names in behalf of our people ...
160. A decade later, the Land Question was still entirely unresolved. Indeed, in 1920, Parliament enacted Bill C-13, which allowed the federal Cabinet to reduce reserve land without negotiating land surrenders with Indians.
161. The Land Question still remains entirely outstanding. The only lands secured for Kwantlen’s benefit are their few, small reserves. They are wholly inadequate to Kwantlen’s needs, let alone as an adequate settlement for the use of its territory by others.
162. Since the founding of the HBC fort and the colony, Kwantlen people have witnessed settlers pour into their territory and take over their lands, encouraged and facilitated by the laws and policies of the colonial, provincial and federal governments. The governments pursued a policy of “concentrating the Indians upon Reserves” so that Kwantlen’s lands would be opened up for European settlement.
163. The result is that much of Kwantlen’s territory is now in private hands and has been quite intensively developed for residential, agricultural and industrial purposes. Much of the territory has been transformed from the lands and waters that sustained Kwantlen people for generations beyond counting. Cars and trains roar past on highways and railroads on both sides of the river. Kwantlen people have little land on which to hunt, and there are now few animals in their core territories in any event. The salmon in the river have declined dramatically, and their fishing times are heavily restricted by DFO. The sturgeon are endangered. - 58 -
164. In short, Kwantlen people’s ability to exercise their Aboriginal title and rights and their very identities as a people are under extreme pressure.
165. Socio-economic conditions for Kwantlen people are also very difficult. Unemployment is high, and a large percentage of Kwantlen members are on social assistance. Kwantlen has a significant housing shortage, and many of the houses it does have need substantial repairs. A relatively low number of Kwantlen youth graduate with a Dogwood Certificate; many leave school without graduating and come out of school unprepared for work in the modern economy.
C. Kwantlen people’s concerns about the TMEP in light of the cumulative effects to their territory
166. It is hoped that the preceding submissions about Kwantlen’s post-1846 history give rise to two realizations. First, even a brief summary of this history should provide a glimpse of the injustice with which Kwantlen people have been treated by European settlers, the Colony of British Columbia and the Canadian state. The lands and waters which they so long depended upon and cared for have been alienated from them, polluted, and developed and exploited by others. Indeed, this present process – the Board’s review of the Project – assumes that the Crown is the decision-maker and that Kwantlen is merely an intervenor, even though the pipeline would go through the core of Kwantlen’s territories and mere metres from their village sites.
167. Second, the post-1846 history should provide a sense of the cumulative effects of the array of interference with Kwantlen’s rights and title. From the earliest days the Crown and its agents sought to move Kwantlen people off the land in order to open it up for settlement, development and exploitation. The results are that much of Kwantlen’s territory is now privately owned, a very substantial portion of it has been logged or subjected to other intensive resource extraction, and extremely little of it is pristine any longer.
168. Kwantlen people continue to hunt, but they must now go farther afield than their ancestors did in order to find game. The development on the south side of the Fraser has been so extensive that there is little land left in which to hunt. - 59 -
169. The most substantial resource left to them in the heart of their territories is the Fraser River, but that too is under extreme pressure. As documented by the Cohen Commission of Inquiry into the Decline of Fraser River Sockeye Salmon, the sockeye – the most important of their fish – has been suffering a long decline. Kwantlen people know, and Commissioner Cohen found, that there are a great many sources for this decline. Among them are habitat loss and pollution in the Fraser. These are among the reasons that Kwantlen people are so greatly concerned about the TMEP. Simply put, they fear that a substantial spill or series of smaller spills of diluted bitumen or other heavy oil products into the Fraser would push the river and the fish within past the tipping point and dramatically pollute and reduce stocks and habitat for many years.
170. For Kwantlen people, the TMEP would not only harm their territory, their culture, and their rights and title if a large spill or series of smaller spills actually occurred. Rather, Kwantlen people also feel harm simply through the threat of such spills. There are at least four ways in which this is so.
171. First, there would be the increased sense of anxiety that comes with living with risk. The TMEP runs near the Fraser – and sometimes almost immediately adjacent to it – and the TMEP crosses a great many rivers, streams, creeks and other tributaries that feed into it. The Fraser has sustained Kwantlen people since their very beginnings. It is truly the backbone of their culture.
172. The pipeline is similar to a long fuse on a bomb. It cannot be known exactly how long the fuse is, or even if the bomb will ever go off, or exactly how large the explosion will be if it does. But if the bomb does explode, it has the potential to irreparably damage the river and the fish and, with them, Kwantlen’s distinctive culture.
173. In the modern settler society, people can simply move from a place that has suffered environmental damage. Kwantlen people cannot. Their territory is their homeland, and it defines who they are as a people. If the TMEP is approved and built, Kwantlen people will have to live with the anxiety that the backbone of their culture could be irremediably damaged. - 60 -
174. The second kind of harm arising from the threat of a spill is the damage it renders to Kwantlen people’s spiritual connection with their land. Allowing such an enormous threat to the lands disrespects the spirits of all things that inhabit their lands. Whereas for Kwantlen people their land is a sacred space, allowing the TMEP to proceed would ignore its inherent value in favour of human uses. It would view their land as a space to be transformed to suit human values, rather than as a unique land to be honoured and cared for.
175. The result is that the TMEP would very largely accelerate a process by which Kwantlen youth and successive generations lose their spiritual connection with their land. If their land is despoiled, alienated from them, put to uses without their consent, and subjected to the threat of an environmental catastrophe in the form of an oil spill, it is extremely difficult to maintain that connection. The TMEP would contribute to this process very significantly. Kwantlen members are very aware of and concerned by the proposed TMEP; indeed, a number of them have organized and participated in lawful protests against it. The TMEP is the largest and most publicized industrial project to have been proposed for their territories in a long time. There is no comparable project that brings as much potential risk to Kwantlen territory as the TMEP. If it is imposed on them, then that insult and shame to the land and Kwantlen people’s relationship with it will be intensely felt within the community.
176. Third, as discussed further below, approving the TMEP without Kwantlen’s consent would violate their right to manage their lands, and this would constitute another kind of harm arising from the TMEP even if a substantial spill or series of small spills never happens. Kwantlen people believe they have a responsibility to care for their lands. Aboriginal title provides them with the right to do just that – to determine, for instance, whether the benefits of a particular activity outweigh the risks to the land, and to actually regulate the use of the land in accordance with that determination. If the TMEP is imposed on them without their consent, then such would constitute a severe violation of their right to manage their title lands.
177. The fourth and last harm to be addressed here relates again to the issue of the cumulative effects of industrial development in Kwantlen’s territories. There appears to be a notion these days that the more developed an area is the less it needs to be protected from - 61 -
environmental risk. For instance, some people say that the impacts of the TMEP are not that great because there is already an oil pipeline in place.
178. Certainly the concern to protect pristine environments can be easily understood, especially when so few of those still exist. But the argument that one should be less concerned about new environmental threats to already developed areas is deeply flawed. To contrary, we should be more concerned about such threats because the cumulative impact of many layers of development and environmental pressures can cause irremediable damage to an ecosystem.
179. That is Kwantlen’s concern for the Fraser. Kwantlen people greatly fear that the river is highly vulnerable to an oil spill – that a significant spill, or a series of spills, could very seriously impact it and the fish within it for many years. Kwantlen has been subjected to so much development pressure that this threat to the Fraser is a serious threat to their culture and their future. Given all of the development and alienation of their lands, fishing on the Fraser constitutes a large part of their contemporary use of their territory. If the Fraser is polluted by an oil spill, and if fishing on the river is removed from them for a significant period of time, then their generational connection to this important resource will be broken. The very real risk is that Kwantlen’s youth and the young people that follow them will not know the kind of connection to their lands that is at the heart of their identity as Kwantlen people. This represents cultural destruction in its most extreme form.
180. The four harms just articulated relate to the mere presence of the TMEP. But the TMEP also poses risks of more tangible harms that deeply concern Kwantlen.
181. First, Trans Mountain suggests that a large spill or series of smaller spills simply will not happen. But accidents – even catastrophic ones – do happen. Nobody predicted the sinking of the Exxon Valdez, or the spill into the Kalamazoo River, or the Deepwater Horizon disaster, but of course they did happen, and the results were catastrophic. Smaller spills are more common still, as seen in the recent spill from the freighter in English Bay. Indeed, Trans Mountain itself has had a number of leaks on its pipelines, including along the Coquihalla and in Burnaby. - 62 -
182. Second, the significance of a spill event cannot be assessed simply by looking at the probability of its occurrence; rather, the consequences of the event also have to be weighed. And in the case of the TMEP, the consequences of a large spill into the Fraser would be truly catastrophic. The Fraser is already under severe environmental pressure, and many Kwantlen people believe it is at a very precarious point. If a spill did seriously damage the Fraser and the fish that use it, the result for Kwantlen as a people would be devastating.
183. Kwantlen people have very little faith in Trans Mountain’s ability to effectively respond to a spill. It is a simple matter for industry or government to promise an effective and clinical response to future events, but when the events actually occur the response is almost always inadequate, as seen with the Kalamazoo River, or even the recent spill in English Bay.
184. In any event, if oil hits a waterbody, there will be very little chance of cleaning it up. The spacing of the valves along the pipeline means that much oil will still be released even if the valves shut off at the earliest opportunity. Trans Mountain’s response stations are spaced very far apart, and equipment will not be brought to the site until well after the oil has already migrated a great deal. A great many of the streams crossed by the pipeline are too fast-moving to be boomed. And it will essentially be impossible to contain the oil once it is in the Fraser River.
185. Trans Mountain intends to be guided in its emergency response by a list of “High Consequence Areas”, but it has not engaged in any consultation with Kwantlen and by its own admission it has developed the list without any consideration of Aboriginal rights and title.50
186. Trans Mountain also has not incorporated First Nations into its spill response planning in any significant way. While local First Nations may be invited to be part of Unified Command, this appears to be more of a public relations exercise than anything else. Kwantlen members are constantly on the land and know it intimately and, by virtue of their Aboriginal title, they have the right to manage the land. And yet they have not been included in emergency response planning.
50 B355-2 (A4J7I8) – Trans Mountain’s Responses to Cheam and Chawathil’s IR 2, p. 1 (response to IR 2(b).1.1). - 63 -
187. For these reasons, Kwantlen regards the TMEP as posing great risk to their territories, their rights and title, and their identities. Kwantlen is a pragmatic and progressive community, and they have very significant economic needs. Consequently, they are willing to support industrial projects when they can be reconciled with Kwantlen’s responsibility to care for the land and its future generations. But the TMEP brings too much risk to Kwantlen as a people, and so it cannot consent to the TMEP. Indeed, it is firmly opposed to it.
PART V: THE TMEP’S ADVERSE IMPACTS ON KWANTLEN’S RIGHTS AND TITLE
188. Approval of the TMEP would both infringe Kwantlen’s proven rights and title and would pose adverse impacts to its strong claims to rights and title.
189. It is clear that the TMEP would infringe Kwantlen’s Aboriginal title to the Salmon River. Kwantlen does not consent to the TMEP using its title lands in any way. As the Court stated at para. 76 of Tsilhqot’in:
The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders. If the Aboriginal group does not consent to the use, the government’s only recourse is to establish that the proposed incursion on the land is justified under s. 35 of the Constitution Act, 1982.
190. Approval of the TMEP would also infringe Kwantlen’s established s. 35 right to fish, and would pose significant risk of very serious adverse impacts with respect to its strong claims to other Aboriginal rights and to Aboriginal title on publicly-owned lands between Sumas Mountain in the east and New Westminster (AK 1175) in the northwest. The risk relates to a large spill or series of smaller spills. The potential is real, and the consequences could be extremely dire for Kwantlen. The risk is highly significant.
191. As stated above, Kwantlen people know that, while it is not certain a large spill or series of smaller spills will occur, it is also very far from certain that they will not. Spills do happen, no matter how extensive the precautions, because equipment fails, human operators err, or events occur that were not anticipated or cannot be protected against. As discussed above, Kwantlen people also know – as they know their territory, and the wider Fraser Valley – that if a serious spill does occur, then it will be next to impossible to prevent a large amount of - 64 -
oil from entering important water bodies, and entirely impossible to clean it all up. Kwantlen people know that the Fraser River and its tributaries are in a precarious condition; the risk that a serious spill would damage the rivers and the life within them for many years is very high. As stated, the consequences for Kwantlen as individuals and as a people could be extremely grave.
192. As will be discussed further below, Kwantlen was not given the funding that would allow it to engage its own scientific experts to contribute to its assessment of the risks of the TMEP. However, evidence submitted by other intervenors supports Kwantlen’s conclusions:
a. There is a substantial risk of a large spill:
i. Many spills have occurred on the Trans Mountain pipeline in the past 60 years, contrary to TM’s assertion that it has been operating safely during that time: City of Vancouver’s written evidence.51
ii. Human error is a major cause of significant accidents: City of Vancouver’s written evidence.52
iii. Slope stability through the Coquihalla and Fraser valleys is a serious issue, and where significant landslides occur frequently: Shxw’owhamel’s Accufacts Report and Stó:lō Collective’s written evidence (Appendix 7).53
iv. Large, devastating floods have regularly occurred in the Fraser Valley: Stó:lō Collective’s written evidence (Appendix 7).54
v. The likelihood of an oil spill from the TMEP is high: Tsleil-waututh’s Asessment of Spill Risk Report.55
51 C77-27-1, pp. 20-22.
52 C77-27-1, pp. 30-31.
53 C312-8-2, pp. 5-6, 8; C326-9-12.
54 C326-9-12. - 65 -
b. Once a leak occurs, it is unrealistic to expect that the pipeline will be shut off within 10 minutes, contrary to TM’s contention: Shxw’owhamel’s Accufacts Report.56
c. The worst case scenario outlined in TM’s application materials (1300 m3) could easily be exceeded in the event that leak detection systems fail to work properly, or a landslide destroys one or more pipeline valves, or if human error occurs: Shxw’owhamel’s Collier Report.57
d. A substantial leak of oil that reaches near Kwantlen’s main reserve could pose health risks to Kwantlen members and could have serious groundwater impacts: Shxw’owhamel’s Mark West Spill Assessment.58
e. At various locations, leaked oil could flow into water bodies, including the Fraser River, within hours, or even mere minutes: Shxw’owhamel’s Mark West Spill Assessment.59
f. “A pipeline spill into the Fraser River or its tributaries could cause large scale injury to fisheries in the region”: Shxw’owhamel’s Collier Report.60
g. If the oil hits freshwater, then spill response efforts are likely to have little success: Shxw’owhamel’s Mark West Spill Assessment.61
55 C358-13-15, pp. viii, ix, 131.
56 C312-8-2, p. 9.
57 C312-8-3, pp. 37-38.
58 C312-8-4, pp. 2-12, 14.
59 C312-8-4, pp. 46-66.
60 C312-8-3, p. 37.
61 C312-8-4, pp. 16-33. - 66 -
193. As supported by the expert scientific evidence, there is a very significant threat of an oil spill that would have serious consequences to Kwantlen’s territories and human health, the fish it depends upon and the exercise of its rights and title.
194. It should also be observed that TM’s application improperly excludes from consideration those risks that have a low probability but particularly serious consequences. As set out in the City of Vancouver’s evidence,62 “risk can only be evaluated using both (1) hazard (probability and severity) and (2) consequence (exposure and vulnerability).” Professor Etkin concludes that TM’s risk assessment “incorrectly uses hazard probability in lieu of risk and this has resulted in an improper exclusion of a large range of low probability, high consequence (LPHC) events from the risk assessment.”
195. Such LPHC events are of particular concern to Kwantlen people because they threaten their homeland – the lands that define who they are as a people. They are particularly vulnerable to a spill because they depend on the territory for physical sustenance, because their Aboriginal title and many rights are site-specific and cannot be transferred to other locations, and because they have intimate social, personal and spiritual attachments to their particular territory that cannot be replicated elsewhere. An LPHC event that broke their connection to their territory for a significant period of time – if, for instance, it precluded fishing for some years – could irreparably damage the cultural continuity in their community. Even larger LPHC events could devastate them as a people.
196. Given the risks of serious spills, the TMEP would infringe Kwantlen’s established Aboriginal right to fish, as well as threaten serious adverse impacts to Kwantlen’s claimed Aboriginal rights and title.
PART VI: THIS PROCEEDING AND THE CROWN’S DUTY TO CONSULT AND ACCOMMODATE
197. As set out above, the federal Crown is relying on this process to discharge, to the extent possible, its duty to consult and accommodate. Kwantlen has stated above that the Board is
62 C77-27-1, p. 26, ll. 7-11. - 67 -
under a Rio Tinto duty to determine whether the Crown has discharged that duty. Kwantlen submits that it should come to two key conclusions in that regard:
a. This proceeding is incapable of discharging the Crown’s duty to consult and accommodate; and
b. Even the subsequent Phase III consultation, as planned, will not discharge the Crown’s duty.
198. The submissions that follow in this Part VI are organized around those two central conclusions. Under the third subheading in this Part, Kwantlen submits that, if the Board does properly arrive at either of those conclusions, then it must recommend that the TMEP not be approved in light of the failure to discharge the duty to consult and accommodate.
A. This proceeding is incapable of discharging the Crown’s duty to consult and accommodate
199. There are many deficiencies with this proceeding with respect to discharging the Crown’s duty to consult and accommodate. For one thing, as the Board has stressed, as a quasi- judicial tribunal, the Board does not actually carry out consultation. Rather, the proceedings before the Board are adversarial and litigious. While – but for the concerns set out below – such a process might serve to fulfill procedural aspects of the duty to consult and accommodate – such as identifying impacts on proven and claimed Aboriginal rights and title – it remains up to the Crown to ensure that such information properly informs its decision and that it properly consider the need to accommodate Aboriginal rights and title. The Crown has not yet discharged that duty, such that the duty to consult and accommodate remains unfulfilled. That being the case, the Board must recommend that the TMEP not be approved, at least until the Crown discharges its duty to consult and accommodate.
200. Kwantlen expects other First Nations intervenors to more fully articulate this position, as well as concerns regarding the lack of any consultation on the list of issues,63 the absence of
63 Kwantlen’s concerns in that regard are set out in the Chief Gabriel Statement (C-198-11-1) at pp. 32-33, para. 126. - 68 -
any consultation on the Board’s process,64 and TM’s unresponsiveness to information requests. Kwantlen will rely on its evidence and the submissions of other intervenors in those regards.
201. The concern with this proceeding on which Kwantlen will focus is the absence of adequate funding to allow it to meaningfully participate. Kwantlen received some funding from Trans Mountain for its CHOA and some very limited, early advice from technical experts. But the only funding Kwantlen received to allow it to participate in this proceeding is the Board’s allocation of $40,000, plus $2,500 in travel expenses.
202. That amount is utterly inadequate to allow Kwantlen to meaningfully participate, let alone fully participate. It is less than one-tenth of the funding for which it applied, which is the funding Kwantlen believed was necessary to allow it to properly and sufficiently participate in this proceeding.
203. To put the inadequacy of the funding into perspective, consider that Trans Mountain’s initial application was roughly 15,000 pages long of highly technical material. For Kwantlen’s legal counsel just to read the application, he would need to do so at a rate of less than $3 per page or Kwantlen’s funding would be exceeded. That is not possible. Even at a low rate of $300 per hour, for instance, he would need to read approximately 110 pages of highly technical material every hour for 133 hours.
204. But of course, tens of thousands of pages of material have since been filed with the Board. The total amount of these pages is not known, but in the Northern Gateway proceeding the JRP reviewed approximately 175,000 pages of material.65 Plainly the $40,000 Kwantlen has been provided could only ever allow its legal counsel to read a tiny fraction of that amount of material.
205. Kwantlen naturally did not need funding for its counsel just to read the documents; it also needed its counsel to be able to prepare information requests in order to probe Trans
64 Kwantlen’s concerns in that regard are set out in the Chief Gabriel Statement (C-198-11-1) at p. 34, para. 127.
65 See Chief Gabriel Statement, Ex. L (C198-11-8, p. 493). - 69 -
Mountain’s application and evidence as much as information requests could allow. Kwantlen did spend part of its funding filing a first round of IRs (to which TM’s answers were largely unresponsive). But the inadequacy of the funding Kwantlen received made the second round of IRs entirely impracticable: in order to make any effective use of that process, one needed to have fully reviewed Trans Mountain’s responses to the previous information requests of the NEB and the intervenors, to determine what questions had not yet been asked, and what gaps remained in Trans Mountain’s answers. Those responses again amount to thousands of pages of material, and so the process was entirely unaffordable. Kwantlen therefore decided that it could not afford to make information requests during the second round.66
206. Kwantlen made that decision even though – as set out further below – it was willing to spending some of its own monies. But its finances are very limited and the socio-economic needs of its community are very great. Kwantlen does not have sufficient financial resources to cover the whole shortfall in the funding allocation to allow it to participate meaningfully in this proceeding.
207. Kwantlen also needed its legal counsel to prepare its evidence and final submissions, of course, which obviously entails very considerable expense.
208. In addition to paying for legal counsel, Kwantlen sought funding for the assistance of two kinds of experts. First, it applied for funding to allow it to gather further data relating to Kwantlen’s use and occupation of relevant lands, and to prepare an expert report with that data to supplement the CHOA and the previous studies arising from the KTKP. In its funding application it provided considerable detail on the work it anticipated being done at that time (May of 2014), along with its expert’s best estimates of cost.
209. Not only was Kwantlen not provided sufficient funding to allow it to undertake this work, but in its funding decision the Board specified that expenses related to “[w]ork related to establishing evidence for prior use and occupation” will not be reimbursed. There cannot be
66 C198-9-1. - 70 -
any legitimate purpose for this exclusion. As Kwantlen councillor Tumia Knott stated in a letter to the Board:67
Does the Board view Kwantlen’s prior use and occupation as irrelevant to its review? If so, we cannot see how the Board is abiding by the constitutional limits on its jurisdiction. Is the work of our counsel in gathering and presenting direct evidence from Kwantlen members on prior use and occupation – including through oral traditional evidence (which Procedural Direction No. 1 advises First Nations is to focus on “how the Project would impact their community’s interests and rights”) – to be excluded from reimbursement? Is only the work of experts to be excluded, and if so, why? Respectfully, the stipulation is nonsensical. In Ruling No. 5, the Board stated that, in relation to Issue 9, “[a]n Aboriginal group is best placed to determine the nature and extent of the interests it has and to bring forward its evidence to demonstrate such interests and the potential impacts the project would have on those interests. The Board will take into account and fully consider evidence of potential impacts of the project on such interests.” We do not understand how evidence of prior use and occupation – and hence evidence of Aboriginal rights and title – can be excluded from the funding the Board is providing.
210. In its funding application Kwantlen also sought funding to commission ecological risk assessment evidence. Prior to making its funding application, Kwantlen engaged technical experts (Pottinger Gaherty Environmental Consultants) and identified certain gaps in Trans Mountain’s evidence of particular concern to it, and those technical experts scoped out studies and provided preliminary cost estimates. Kwantlen included those details on the proposed studies and the estimated costs in its funding application. While those were the studies Kwantlen had identified at that time (May 2014), Kwantlen would have sought to refine the scope of that work as the proceeding unfolded and the gaps in the information became more clear. But again, the wholly inadequate amount of funding Kwantlen was provided made any of this impossible. Kwantlen also could not afford to pay for Pottinger Gaherty to assist it in further reviewing the application, or preparing information requests, or evaluating Trans Mountain’s responses. In short, with respect to a highly technical application, the Crown has not provided Kwantlen – through the core traditional territory
67 Chief Gabriel Statement (C198-11-1), p. 35, para. 137. - 71 -
(indeed, through Aboriginal title lands) of which the TMEP will run – with the funding necessary for it to have technical assistance to evaluate and test the application, or to commission evidence about its environmental effects and its impacts on Kwantlen’s Aboriginal rights and title.
211. Kwantlen is a small band of only 265 members. Its annual budgets are modest, and its financial needs far exceed its resources. It simply cannot afford to pay by itself the costs associated with meaningfully participating in this review.
212. That Kwantlen was denied the funding it needed to meaningfully participate in this review cannot be consistent with the honour of the Crown.
213. The TMEP obviously poses the risk of very serious adverse consequences to Aboriginal rights and title that there can be little doubt Kwantlen holds – indeed, its Aboriginal right to fish and its Aboriginal title over the Salmon River must be taken to have been established in this proceeding. It is obvious that the Crown is duty bound to consult Kwantlen at the highest level. Kwantlen needed assistance from legal counsel and experts in order to meaningfully participate in this process, and yet it was not provided with anything like an adequate amount of funding to allow it to do so.
214. How can it be honourable for the Crown not to provide affected First Nations with the funding they need to participate in the process through which the Crown has said it will consult them?
215. It seems obvious that, if the Crown has a duty to consult a First Nation, then it has a corresponding duty to provide that First Nation with the funding necessary to meaningfully engage in consultation. If the Crown’s duty falls at the lower end of the consultation spectrum, if the subject matter is not very technical, and if the process is informal, then such funding may not amount to very much. But if, as here, the duty is at the highest level, the subject matter is extremely technical, there is an avalanche of information relating to the project, and the process is quasi-judicial, then the funding provided must necessarily be very substantial in order for the First Nation to meaningfully participate. Kwantlen has not been provided with anything close to an adequate amount of funding. - 72 -
216. This situation can only be viewed as inconsistent with the honour of the Crown. That is especially so given the context of the enormous amounts of money at stake. The Board has capped the funding provided to all intervenors combined (not just First Nations) at $3 million. That amounts to 0.05% of Trans Mountain’s construction costs for the project ($5.4 billion), or 0.0003% of the federal government’s projected increased tax receipts over the course of the first 20 years of the TMEP’s operations (stated to be $10.2 billion68).
217. Further, in its “Firm 50 decision” the Board approved higher tolls to allow Trans Mountain to amass $136 million to pay for the pre-construction costs of its project – including Trans Mountain’s participation in this proceeding. The $3 million that the Board has provided in funding to intervenors to participate in this proceeding is 2.2% of what it approved for Trans Mountain, which is an enormously profitable entity in its own right and is part of a vast corporate empire. The $40,000 that the Board provided to Kwantlen to participate in the process amounts to 0.00029% of what the Board approved for Trans Mountain.
218. Again, it is incomprehensible that the Crown and the Board would not provide Kwantlen with sufficient funding if they were serious about ensuring Kwantlen had a real opportunity to meaningfully participate in this proceeding. The Board has said that it is constrained by what the Treasury Board provides it. But why would the Board not require Trans Mountain to provide the funding First Nations require to participate meaningfully in this process?
219. That opportunity has now passed. What now faces the Board is its duty to determine – pursuant to Rio Tinto – whether this proceeding is consistent with the honour of the Crown and has discharged the Crown’s duty to consult. Kwantlen says the answer is clearly no. While Kwantlen has participated in this proceeding, it has been denied the opportunity to do so in a meaningful way in light of the serious impacts the TMEP would pose to its claimed – and indeed its proven – Aboriginal rights and title.
68 B427-4 – 3a (Conference Board of Canada, TMEP Understanding the Economic Benefits for Canada and its Regions), p. 44. - 73 -
B. Even the subsequent Phase III consultation, as planned, will not discharge the Crown’s duty
220. The Crown has stated in NRC’s written evidence69 and the Approach Letter70 that it plans to consult First Nations during Phase III, following the Board’s release of its decision. Again, it states this about those consultations:
From November 2015 to January 2016, the MPMO will coordinate consultation meetings between the Crown and Aboriginal groups for which the depth of consultation has been determined to be moderate or high. The purpose of these consultations is to conduct a meaningful two-way dialogue to determine if there are any concerns related to the Project that have not been fully addressed by the NEB’s draft conditions or the proponent’s commitments to that point in the process, and to consider proposals from Aboriginal groups for accommodation measures that could be considered by the Crown to further address outstanding issues or concerns.
221. (Obviously the dates of Phase III are now pushed back, in light of the pause to the proceeding ordered by the Board in September of 2015.)
222. Two points should be apparent from the paragraph quoted above. First, the Crown appears to intend to use these consultations to identify any additional accommodation measures that are required. It does not appear to contemplate any further information gathering with respect to the TMEP’s impacts or First Nations’ Aboriginal rights and title. It appears that the Crown will rely on this proceeding entirely in that regard.
223. That may be in part because of the second point, which is that pursuant to s. 54(3) of the NEB Act Phase III will only last three months (unless the period is specifically extended by order). By contrast, this proceeding has lasted more than 15 months, spread over a period of close to two years. Even if the Crown were to attempt in Phase III to cure the defect of Kwantlen not having been able to meaningfully participate in this proceeding, such a task would obviously be impossible.
69 C249-9-1, para. 48.
70 See C249-9-2, pp. 84-88. - 74 -
C. The Board must recommend against approval of the application
224. As set out above, the Board has a statutory obligation to determine the questions of law before it. Pursuant to Rio Tinto, those questions include whether this proceeding can discharge the Crown’s duty to consult. The answer to that question is clearly no. Indeed, it is clear that the Crown will not be able to discharge its duty to consult even with the benefit of subsequent consultation in Phase III.
225. The Board has a statutory obligation to provide its recommendation as to whether or not federal Cabinet should approve Trans Mountain’s application. Constitutionally, the Crown may only approve that application if, among other things, it has acted in accordance with the honour of the Crown, including by discharging its duty to consult and accommodate. The Crown has not yet fulfilled those requirements, and indeed it is clear that it will be unable to do so, given that Kwantlen was not able to meaningfully participate in this critical stage of the review process. The Board must therefore recommend against approval.
PART VII: THE BREACHES OF KWANTLEN’S ABORIGINAL RIGHTS AND TITLE CANNOT BE JUSTIFIED
226. As set out above, approving the TMEP would infringe Kwantlen’s Aboriginal title over the Salmon River and its Aboriginal right to fish, both of which have been proven in this proceeding for the purposes of the Board’s review of the application. The result is that the Board may only recommend approval of the TMEP if – among other things – it concludes that such infringements are justified.
227. The Supreme Court of Canada set out the broad requirements for justification at para. 77 of Tsilhqot’in:
To justify overriding the Aboriginal title-holding group’s wishes on the basis of the broader public good, the government must show: (1) that it discharged its procedural duty to consult and accommodate; (2) that its actions were backed by a compelling and substantial objective; and (3) that the governmental action is consistent with the Crown’s fiduciary obligation to the group: Sparrow.
228. The third element – that the government action be consistent with the Crown’s fiduciary duty – has two aspects. The first is that “the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations”, - 75 -
and “incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land”.71 The second is the requirement of proportionality, meaning that: the infringement must be necessary to achieve the government’s compelling and substantial objective (rational connection); the infringement cannot be greater than what is necessary to achieve that objective (minimal objective); and the benefits of the infringement to society at large must not be outweighed by the adverse impacts on the Aboriginal interest.72
229. Related to the last element, Delgamuukw also identified the need for compensation for infringements of Aboriginal title:73
[A]boriginal title, unlike the aboriginal right to fish for food, has an inescapably economic aspect, particularly when one takes into account the modern uses to which lands held pursuant to aboriginal title can be put. The economic aspect of aboriginal title suggests that compensation is relevant to the question of justification as well, a possibility suggested in Sparrow and which I repeated in Gladstone. Indeed, compensation for breaches of fiduciary duty are a well- established part of the landscape of aboriginal rights: Guerin. In keeping with the duty of honour and good faith on the Crown, fair compensation will ordinarily be required when aboriginal title is infringed.
230. Kwantlen submits that there are at least four reasons why the TMEP’s infringements of its Aboriginal title and rights would not be justified.
231. First, as set out above, given the inability of Kwantlen to participate in this proceeding to a degree that is meaningful in light of the scope of the application and the magnitude of Kwantlen’s interests at stake, approval of the TMEP would not be consistent with the honour of the Crown and the Crown’s duty to consult and accommodate Kwantlen. That conclusion is fatal to any attempt to justify the infringements.
232. Second, while Delgamuukw tells us that “fair compensation will ordinarily be required when aboriginal title is infringed”, neither Trans Mountain nor the Crown has indicated to
71 Tsilhqot’in, para. 86.
72 Ibid., para. 87.
73 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 169. - 76 -
Kwantlen that they would provide fair – or, indeed, any – compensation to Kwantlen. Trans Mountain repeatedly assures the Board that the TMEP would be enormously profitable and would bring huge revenues to the federal government, and yet none of that is being offered to Kwantlen for the use of its title lands and as compensation for impacts on its right to fish.
233. The absence of compensation – indeed, of participation in the economic fruits of the TMEP – cannot be consistent with the honour of the Crown. Aboriginal title carries with it the right to the economic benefits of the land. To trespass on Kwantlen’s title for a profit-making enterprise and yet share none of those profits is wholly dishonourable.
234. It appears that Trans Mountain is only prepared to offer tangible economic benefits to First Nations through benefits agreements, a term of which is the First Nations’ consent or non- opposition to the TMEP. First Nations such as Kwantlen that remain opposed to the project on the grounds that the risks are too great are offered nothing, other than the soft training, employment and business opportunity “commitments” Trans Mountain has made. Those commitments not only lack real definition and force, but they are also unlikely to be able to be taken up by Kwantlen people to a degree that would constitute a substantial benefit – certainly not one that would even begin to approach the scale of the harms and risks the pipeline poses.
235. In the result, Kwantlen’s opposition to the TMEP means that, if the TMEP is approved and constructed, then Kwantlen will receive none of its economic benefits even as the project uses Kwantlen’s Aboriginal title lands and puts its territory, rights and culture at serious peril. Such a situation cannot be consistent with the honour of the Crown. No more can it be honourable for the Board and the Crown to abide Trans Mountain’s attempt to win Aboriginal support for the TMEP by offering economic benefits to those who will sign on to the project, and denying any significant benefits to those who will not. Such financial coercion is utterly inconsistent with the reconciliation objective that underpins s. 35 and the honour of the Crown.
236. Because Kwantlen is being offered no compensation, therefore, the infringement to its Aboriginal title cannot be justified. - 77 -
237. Third, as the Province and other intervenors in this proceeding have demonstrated in their submissions and evidence, there are many gaps in Trans Mountain’s application relating to critical issues, including spill response. In order to assess whether the serious impacts on the Communities’ rights and title are justified, the Board and the Crown need to understand with greater precision the risks that TMEP poses, as well as being satisfied that Trans Mountain has limited those risks as much as possible. Such an assessment is not possible on the state of the evidence.
238. Fourth, what evidence is before the Board strongly suggests that the TMEP’s negative impacts on Kwantlen outweigh the project’s benefits. Even beyond the risk of a spill, the TMEP represents the continued forced alienation of Kwantlen from its lands by continuing to industrialize its territory without its consent. The spills that will occur over the many decades of the project’s lifetime will threaten the ecological integrity of a territory on which Kwantlen has depended for countless generations, and which is already so heavily impacted. A very large spill would threaten Kwantlen’s cultural continuity and survival as a people.
239. Against those very serious impacts on Kwantlen must be weighed the cost-benefit analysis for society more generally. That latter analysis does not provide a positive answer for the TMEP. As the City of Vancouver has shown in its evidence, the impacts of the TMEP on the city are very high. Burnaby’s evidence demonstrates that the economic need is low. Certainly the environmental risks are very serious.
240. The TMEP is not clearly in the public interest, as it would need to be for its approval to be justified in light of its infringements of Kwantlen’s Aboriginal title and rights.
PART VIII: THE PANEL MUST RECOMMEND REFUSAL
241. Kwantlen submits that the Board must recommend that the TMEP not be approved. The TMEP would infringe Kwantlen’s proven Aboriginal title and rights without justification. Given the lack of an adequate opportunity for Kwantlen to meaningfully participate in this proceeding, approval would not be consistent with the honour of the Crown and the Crown’s duty to consult and accommodate Kwantlen with respect to both its proven and asserted rights and title. And finally, the TMEP is not in the public interest. - 78 -
PART IX: CONDITIONS
242. As set out above, Kwantlen was not provided sufficient funding to allow it to retain expert technical advice, and so it has not been able to determine the suitability or inadequacy of the large majority of the conditions. That Kwantlen is unable to do so is yet another instance of this proceeding failing to discharge the Crown’s duty to consult and accommodate.
243. Kwantlen does submit, however, that at least the following conditions must be added if issuance of the certificates were to be approved:
a. Kwantlen must be provided with a fair share of the economic benefits for use of its established Aboriginal title lands, as well as with compensation for infringement of established Aboriginal rights and adverse impacts to claimed Aboriginal rights and title.
b. Trans Mountain must consult Kwantlen, and take its concerns into account, with respect to all subsequent plans that Trans Mountain will be required to develop relating to activities that could impact upon Kwantlen’s territory. Trans Mountain must provide Kwantlen with sufficient funding to allow it to meaningfully engage in such consultation, including by way of obtaining technical advice.
ALL OF WHICH IS RESPECTFULLY SUBMITTED:
Tim Dickson Counsel for Kwantlen First Nation
January 12, 2016