B.C. First Nation says passage of Trans Mountain project through reserve not a done deal

One of the B.C. First Nations identified by Kinder Morgan as having granted consent for the Trans Mountain pipeline expansion to cross through three of its reserve lands says it hasn’t made a final decision on whether it will let the project through.

43 communities have agreements or conditional pacts with Kinder Morgan related to pipeline expansion project

Dan Wallace of the Kwakwaka'wakw First Nation on Quadra Island gets tackled by RCMP officers after trying to talk to a young man who locked himself to a piece of heavy equipment being delivered to Kinder Morgan in Burnaby, B.C., on March 19. Wallace was released a short time later without being charged. (Darryl Dyck/Canadian Press)

One of the B.C. First Nations identified by Kinder Morgan as having granted consent for the Trans Mountain pipeline expansion to cross through three of its reserve lands says it hasn't made a final decision on whether it will let the project through.

The Trans Mountain expansion corridor crosses three separate reserve lands belonging to the Lower Nicola Indian Band, which sits about seven kilometres slightly northwest of Merritt.

Lower Nicola Chief Aaron Sumexheltza said his community has signed a conditional agreement with Kinder Morgan to provide access through its lands and for a mutual benefit agreement (MBA), but it hasn't yet signed a final deal.

"We are still in dialogue with the company," said Sumexheltza. "Over the next couple of months, we are going to have to make a decision whether our chief and council is going to sign off on a final agreement or not."

Lower Nicola is listed among six First Nations that have provided "consent" for Trans Mountain to cross 10 separate reserve lands, according to documents filed by Kinder Morgan with the National Energy Board (NEB).

Bands sometimes have multiple reserve lands, each with its own identifier.

According to a list mentioned by Prime Minister Justin Trudeau on Sunday, Lower Nicola is also one of the 43 Indigenous communities that had some sort of an agreement on the project — a figure provided by Kinder Morgan.

As the situation with Lower Nicola shows, not all of these agreements have been finalized. Kinder Morgan initially stated publicly it had 51, but changed the number after an April 2017 referendum in nine B.C. First Nations rejected a deal. One of the communities then struck out on its own.

The company has 33 agreements with roughly 100 First Nations and Métis groups in B.C. that have been identified as having an interest in the project's construction.

Lower Nicola Chief Aaron Sumexheltza says his community only has a conditional agreement with Kinder Morgan on the Trans Mountain pipeline expansion. (Lower Nicola Indian Band)

The company said in a statement that its "policy has been that the project will only cross reserve lands where we have consent."

The Trans Mountain project has created a national drama between Ottawa, Alberta and B.C. in the wake of an ultimatum by Kinder Morgan earlier this month, that it could scrap the $7.4-billion project by May 31 unless there were agreements in place to overcome British Columbia's opposition.

The project would expand and nearly triple the existing 1,500-kilometre pipeline's capacity from 300,000 barrels of oil per day to 890,000. The pipeline would pump bitumen mined in Alberta from its Sherwood Park terminal to tankers docking at the expanded Westridge Marine Terminal in Burnaby, B.C., which would get three new berths.

First Nations play key role

While the marine terminal sits across the Burrard Inlet from the Tsleil-Waututh Nation, it's also within the community's consultation boundary. Tsleil-Waututh is fiercely opposed to the project because it poses an environmental threat by tripling oil tanker traffic through its territory. 

The Trudeau government approved the project in November 2016 after the NEB recommended it get the green light, subject to 157 conditions.

So far, the NEB has approved 66 per cent of the project's proposed detailed route and hearings are scheduled to continue on the project into the fall, according to the regulatory body.

Much of the attention has been consumed by the ongoing federal-provincial tensions over the project. But First Nations, especially in B.C. where most of the province is unceded land not covered by any treaty, play a pivotal role in its fate, and several have launched court action against the project.

Kinder Morgan has engaged with 133 Indigenous communities and groups in Alberta and B.C. over the last six years on the project. Of those, 120 are considered to be in proximity to the corridor or the marine transportation route for tankers, according to the company's NEB filings.

CBC News combed through NEB files and compiled a list identifying 42 of the 43 communities that have agreements or conditional agreements with Kinder Morgan.

CBC News checked the list with a Kinder Morgan official on the condition the company identify which communities on the list didn't have agreements. The company said it can't provide its own list of agreements as a result of confidentiality conditions with some First Nations.

Sumexheltza said members in his community are still struggling with the project — weighing the economic benefits through contracting and jobs, and the possible environmental impacts.

"My community members are very reliant on salmon, and most people know they are born in streams and creeks of the interior and then they come back to spawn," he said. "If there ever was a spill, it would have a detrimental effect on our community and our food."

Reluctance to discuss deals

Some First Nations that have agreements with the company are still reluctant to speak about the issue given some of the sensitivities surrounding the project.

Tzeachten First Nation, about 35 kilometres east of Abbotsford, B.C., consented to having the pipeline expansion project corridor cut through their reserve lands, according to Kinder Morgan's filings.

Tzeachten First Nation Chief Derek Epp said he needed to consult with the other 15 Sto:lo First Nations that are part of the S'ólh Téméxw Stewardship Alliance before commenting.

The alliance includes Cheam First Nation, which has signed a mutual benefit agreement with Kinder Morgan.

Shxw'ow'hamel First Nation, about 47 kilometres northeast of Tzeachten, is on the list of 43 and part of the alliance. It also granted consent for the project's corridor to cross through its reserve land, according to the company's filings. 

Tzeachten was one of the nine Sto:lo communities that participated in a referendum held last April that rejected signing a mutual benefit agreement with Kinder Morgan.

Epp said his First Nation decided to "independently" begin its own negotiations.

"It is a difficult situation to navigate for myself due to a lot of complications with different boards I sit on. I would like to make a comment eventually."

Hereditary Chief Phil Lane Jr., centre, joins other Indigenous chiefs and elders in leading thousands of people in a march during a protest against the Kinder Morgan Trans Mountain pipeline expansion in Burnaby, B.C., on March 10. (Darryl Dyck/Canadian Press)

Tk'emlúps te Secwe̓pemc, next to Kamloops, B.C., has publicly announced it signed a mutual benefit agreement with Kinder Morgan. However, its leadership is reluctant to speak about it unless it gets clearance from Kinder Morgan.

"We have a signed agreement with Kinder Morgan, and on any questions and press releases we will inform one another," said leader Fred Seymour. "We are not taking cheap shots."

Seymour said the community expected to host one of the pipeline's work camps on its territory, but the issue is still being negotiated.

"In one meeting they say yes and in another meeting they say no. We are ironing out the kinks and the most efficient place."

About 20 kilometres along the highway south of Lower Nicola Indian Band sits Coldwater Indian Band, which is battling Kinder Morgan at the NEB and in Federal Court.

'Dangerous times'

Coldwater Indian Band Chief Lee Spahan said the company's proposed routes for the pipeline expansion threaten the community's drinking water aquifer. Spahan said when the company first met with the community, it put five route proposals on the table, including one that did not threaten its water supply.

When the company filed three proposed routes — one through reserve, one on the edge and one between the community and the Coquihalla Highway — with the NEB, it omitted the one that avoided impacting Coldwater's aquifer, he said.

"The membership is saying we don't want our aquifer impacted," said Spahan. "If they start digging up the ground, it's going to impact the ground, it's going to impact our water."

Spahan said the community has commissioned a study to get a clear idea of the potential impact from the proposed routes. The community is also scheduled to attend NEB hearings on the issue in early May.

Tk'emlúps te Secwe̓pemc Kúkpi7 Fred Seymour's community has a mutual benefit agreement with Kinder Morgan on the Trans Mountain pipeline expansion project. (Tk'emlúps te Secwe̓pemc website)

Spahan said he doesn't have confidence in the NEB making objective decisions, especially since the Trudeau government has already it announced plans to scrap and replace the regulator.

"The federal government should be listening to us, but they are using the NEB to go around us," he said. "It is about our title and our right, and it is about having respect for us."

Eddie Gardner is a member of the Skwah First Nation, which is along the Fraser River and nine kilometres north of Tzeachten. It was one of the St:olo communities that voted down a deal with Kinder Morgan.

Gardner said he and others in his community have attended protests in Burnaby Mountain against the project. He said tensions are rising and it worries him.

"As we move ahead, people are going to be more desperate on both sides, either to see this ram through or to stop it," said Gardner, president of the Wild Salmon Defenders. "We are in some very dangerous times right now. I just hope we can sort things out in a peaceful and reasonable manner."



Jorge Barrera is a Caracas-born, award-winning journalist who has worked across the country and internationally. He works for CBC's investigative unit based out of Ottawa. Follow him on Twitter @JorgeBarrera or email him