Kwusen-Authored Report Cited in Trans Mountain Court Decision

Kwusen Research & Media conducted a study with the Upper Nicola Band that was cited in the recent Federal Court of Appeal’s decision in Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153. In Tsleil-Waututh, the Federal Court of Appeal found that the Crown’s consultation with Indigenous Peoples with respect to the Trans Mountain Expansion Project was inadequate. Upper Nicola was one of the Indigenous Applicants in Tsleil-Waututh.

The study referenced in Tsleil-Waututh was a collaborative Traditional Use and Occupancy Study (TUOS) conducted by Kwusen in 2015-2016 with Upper Nicola in relation to the Kingsvale Transmission Line, an electrical transmission line planned as a part of the Trans Mountain Expansion Project (the “Kingsvale TUOS”). This report built on the more extensive 2014 collaborative Traditional Use Study Kwusen conducted with Upper Nicola regarding the Trans Mountain Expansion Project.

The Kingsvale TUOS was conducted through interviews by Upper Nicola researchers, supported by Kwusen Researchers; data management using Upper Nicola’s Community KnowledgeKeeper (CKK) software; and a final report authored by Kwusen researchers, Towagh Behr and Susannah Machelak. Significantly, the final Kingsvale TUOS report included a detailed discussion of anticipated effects of the Kingsvale transmission line identified by Upper Nicola members, as well as an assessment of the Project’s effects on Upper Nicola’s Traditional Use, Aboriginal Title, Rights, and interests.

It was within the context of the Court’s consideration of the Crown’s consultation with Indigenous applicants, including Upper Nicola, and more specifically, Canada’s “failure to dialogue meaningfully”, that the Kingvale TUOS report was referenced. In the case, the Court observed (at para. 732):

Canada and the British Columbia Environmental Assessment Office wrote to Upper Nicola on November 28, 2016, the day before the Project was approved, to respond to the issues raised by Upper Nicola. The only reference to Upper Nicola’s asserted title is this brief reference:

"Impacts and Mitigation: In response to comments received, the Crown has reviewed its analysis and discussion in the Consultation and Accommodation Report on the direct and indirect impacts of the Project on Syilx (Okanagan) Nation’s rights and other interests. In addition, Upper Nicola identified that the study titled “Upper Nicola Band Traditional Use and Occupancy Study for the Kingsvale Transmission Line in Support of the Trans Mountain Expansion Project” (Kingsvale TUOS) had not been specifically referenced in the Syilx (Okanagan) Nation appendix. Upper Nicola resent the Kingsvale TUOS to the Crown on Friday, November 18 and in response to this information, the Crown reviewed the Kingsvale TUOS, summarized the study’s findings in Syilx (Okanagan) Nation’s appendix, and considered how this information changes the expected impacts of the Project on Syilx (Okanagan) Nation’s Aboriginal rights and title. As a result, conclusions were revised upward for Project impacts on Syilx (Okanagan) Nation’s freshwater fishing activities, other traditional and cultural activities, as well as potential impacts on Aboriginal title."
(emphasis added)

The Court went on to note the Crown’s response (or lack thereof) to Upper Nicola’s proposed mitigation measures and requests for accommodation related to stewardship, and use and governance of water, many of which were detailed in the Kingsvale TUOS report (at paras. 733-736). The Court stated that, “Missing is any explanation as to why moderate impacts to title required no accommodation beyond the environmental mitigation measures recommended by the Board—mitigation measures that were generic and not specific to Upper Nicola” (at para. 735). Finally, the Court concluded that in the experience of Upper Nicola, throughout Phase III consultation, Canada did not engage in “meaningful, two-way dialogue or reasonable consultation” (at para. 736).

Overall, while the Court found that “Canada acted in good faith and selected an appropriate consultation framework”, the Court expressly found that, “Canada failed in Phase III to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns. The duty to consult was not adequately discharged” (at para. 6).

We would like to thank Upper Nicola for the opportunity to work together on the research and reporting that assisted their efforts in this important decision. The Courts have again confirmed the requirement for meaningful engagement with Indigenous communities regarding industrial development in their territories, a process that Kwusen is proud to support through collaborative Traditional Use and Indigenous Rights research projects.

For more information on Kwusen’s work with Indigenous communities please contact Towagh Behr at towagh@kwusen.com

For more information on Upper Nicola’s perspective on the Court decision and the Trans Mountain Pipeline, see their press release: https://www.facebook.com/uppernicola/photos/a.514396072006937/1828547830...