PRIVATIZING UNCERTAINTY AND SOCIALIZING RISK: INDIGENOUS LEGAL AND ECONOMIC LEVERAGE IN THE FEDERAL TRANS MOUNTAIN BUY-OUT.

• Author: Pasternak, Shiri

Introduction

In an interview in early-September 2018 shortly after the federal buy-out of the Trans Mountain Pipeline Expansion Project (TMEP), Prime Minister Justin Trudeau proclaimed that this project would be dead if it were not for the higher risk tolerance of the federal government compared to that of previous owner, Kinder Morgan, Inc. (KM). (1) In other words, the federal government could guarantee completion where a private corporation had failed to make the project viable--perhaps even because the project no longer needed to be economically viable to succeed. This statement of the sitting Prime Minister is troubling for many reasons, central among which because he implies that governments have a higher risk tolerance vis-a-vis abrogating Aboriginal title and rights, when indeed they have a constitutional obligation to maintain them and the honour of the Crown. Opposition to the pipeline, led by First Nations and environmental groups, was after all one of the reasons KM cited for selling off this asset. (2) International environmental, Indigenous, and human rights obligations apply directly to governments, so if anything, the government of Canada should commit to implementing higher standards than industry.

Given the widespread Indigenous opposition to the TMEP, the Prime Minister's statement must be understood to suggest that the federal government is prepared to override inherent Indigenous rights. It also flies in the face of higher international standards to which states may be held as compared to private industry. The Prime Minister's statement reflects the approach that the federal government has employed for decades in regard to Aboriginal title and rights. Rather than engaging with Indigenous peoples as nations with inherent responsibilities to govern their territories, a risk management strategy is deployed to manage the uncertainty of Indigenous land rights and broader territorial authority in Canada.

This paper will examine the failure of governments to implement the broader territorial use-based concept of Aboriginal title and the resulting legal and economic risks posed in the context of the TMEP buy-out. This critical intervention considers Supreme Court of Canada decisions and Indigenous legal understandings of jurisdiction as territorially-based, revealing the precarious risk mitigation strategies of the federal government to gain social license for TMEP. The risk management approaches we will examine here include the British Columbia Treaty Commission (BCTC) process, which is a joint federal-provincial process under the federal Comprehensive Land Claims Policy (CLCP) that contradicts the Supreme Court on the territorial use-based concept of Aboriginal title; the off-loading of fiduciary responsibilities and undermining of Indigenous territorial authority through private law instruments, such as Mutual Benefit Agreements (MBAs); and the socialization of risk through the buy-out itself.

The economic uncertainty caused by Indigenous land interests in Canada is a perpetual risk for Crown corporations and industry undertaking major resource infrastructure projects. (3) In this paper, we focus on Secwepemc (Shuswap) responses to the twinning of the Trans Mountain pipeline because the pipeline is proposed to run through more than 500 kilometers of their land and waters--the longest contiguous territory the pipeline would traverse if built--in the South-Central Interior of British Columbia (BC). Furthermore, the federal government has failed to engage with the Secwepemc people collectively, as the proper title and rights holder, to the proposed TMEP, let alone obtain their consent. In Secwepemc territory, some Indian band leadership have signed MBAs to allow for construction through their reserves in small spots along the pipeline route. Other bands, grassroots people, and alliances on the territory have vigorously opposed the expansion of the pipeline, arguing that these reserves are a fractional representation of the broader Indigenous territory (Secwepemcul'ecw) and cannot be used to pretend that Secwepemc consent regarding access to their territory has been obtained. Without weighing in on internal Secwepemc differences themselves, we seek to examine the federal government's engagement process and risk management approach. Here, we find an ideal case study to study Canada's cunning misinterpretation of "consent" and examine whether it is consistent with Indigenous, constitutional, and international law.

We draw out this argument by first examining the broad territorial use-based concept of Aboriginal title articulated in the Tsilhqot 'in v. British Columbia decision. (4) Then we trace this "Aboriginal title risk" back to the Delgamuukw v. British Columbior (5) decision and demonstrate through Freedom of Information requests on internal provincial government responses to Delgamuukw the internal policy responses and risk management approaches to constrain First Nations' legal interest in land following this landmark legal decision on Aboriginal title. (6) Internal documents obtained from the Ministry of Indigenous Relations and Reconciliation and the Ministry of the Attorney General Office reveal a single-minded focus on mitigating the risk of Aboriginal title and securing "economic certainty" by accelerating the British Columbia Treaty Process. We argue that these records, along with contingent liability accounting procedures that emerge post-Delgamuukw, provide critical context for the Trans Mountain pipeline expansion because they reveal the wheels in motion to foreclose the jurisdiction of Indigenous nations asserting and exercising their inherent rights and Aboriginal title.

From here, we show how this risk is not only managed through public policy development, but also through the privatization of uncertainty and the socialization of risk. This risk management approach involves contractual agreements signed by the proponent with Indian Bands. Kinder Morgan reported signing 33 MBAs with Indigenous people in BC that would redistribute $400 million to First Nations communities. Often these agreements are made with Indian Bands, who legally only have delegated authority from the federal governments on Indian reserves. They do not address the issue of access to the larger territory. Therefore, we ask, regarding these private agreements: where does the territorial aspect of Aboriginal title come into play? How do private mutual benefit agreements line up with the legal obligations to the land under Indigenous law, or under the settler law of Aboriginal title?

On the one hand, governments and proponents obscure the risk of Aboriginal title through fragmented agreements that would not meet constitutional standards of consent. On the other hand, through Canada's pipeline purchase, the federal government is attempting to "socialize" this risk by passing it on to all Canadians. Canada has taken on Kinder Morgan's obligations under the MBAs and other private instruments, when they should maintain a higher standard and implement the human and Indigenous rights obligations that apply directly to the state. We argue that with regards to the TMEP the federal government has cunningly misinterpreted consent to undermine Indigenous decision-making regarding access to their larger territories.

Secwepemc Territorial Authority

Secwepemcul'ecw, the territory of the Secwepemc, covers 180,000 square kilometres and spans the interior plateau of south-central BC. It extends from the Western shore of the Fraser River, covering much of this larger watershed, including the South and North Thompson Rivers, and reaches all the way to the Rocky Mountains in the East. The proposed TMEP route follows much of the North Thompson River; and therefore, any spill stands to impact the larger Fraser River watershed--home to some of the largest remaining salmon runs in the world.

This territory not only belongs to the Secwepemc, it has been governed by the Secwepemc nation for thousands of years. As noted by Teit in 1909, the Secwepemc shared a concept of land tenure with other interior nations that was collectively-minded: "All the land and hunting grounds were looked upon as tribal property all parts of which were open to every member of the (Secwepemc) tribe. Of course, every band had its common recognized hunting, trapping, and fishing places, but members of other bands were allowed to use them whenever they desired." (7) This territorial concept was also elaborated in the Memorial to Sir Wilfred Laurier (1910), when the Interior chiefs articulated their grievances to Canada in the form of a letter to the then Prime Minister.

In the letter, the Interior chiefs explained that "the principle of collective land tenure [is] at the level of the 'tribe,' or nation, as opposed to land ownership resting with the village group or with families, let alone with individuals." (8) Knowing and having delineated the defined boundaries of Secwepemcul'ecw (Shuswap territory) with neighboring nations, they maintained an internal coherence of Indigenous nationhood within their territory. As Ron Ignace and Marianne Ignace describe: "[t]heir words conveyed the concept of the Secwepemc, Nlaka'pamux, St'at'imc, Syilx (Okanagan), and others as distinct nations, thus refusing to surrender to the nucleation of these nations into 'bands' imposed by the Canadian government in the 1876 Indian Act." (9) Though, of course, the Secwepemc nation changed with colonization and the imposition of colonial governance structures onto Indigenous nations. The Laurier Memorial demonstrates how the colonial government arbitrarily resorted to limiting not only the land base of bands to reserves, but also their ability to practice their laws and governance within Secwepemcul'ecw at large.

Secwepemc leader Arthur Manuel presented us with a powerful analysis of some of the indicators of colonialism starting with dispossession, pointing out that "Indian...