The Federal Court of Appeal has found the B.C. government erred in its responsibility to protect the environmental and financial interests of the Coldwater Indian Band during the process of approving Kinder Morgan's licence to continue operating the Trans Mountain pipeline on the band's reserve territory.
The decision represents a win for the band and Chief Lee Spahan, who has contended the existing easement agreement -- signed by the band in the 1950s -- exploits Coldwater's resources and land without adequate compensation and is in dire need of renegotiation.
The original easement agreement (signed by the band administration at the time) allowed for the construction and operation of the pipeline through the reserve starting in 1952. As part of the agreement, the Trans Mountain Oil Pipe Line Company agreed to make a one-time payment to the Coldwater band of $1,292, plus $1,125 to cover damages and loss of timber during construction.
After a series of mergers and acquisitions in the mid-2000s, the Trans Mountain Oil Pipe Line Company came under the control of Houston-based Kinder Morgan, which triggered a process through which the federal government was forced to review and re-approve existing easement agreements with First Nations.
But the Federal Court of Appeal ruled the Ministry of Indigenous Affairs had not updated the terms of the 1952 agreement to include items like adequate financial compensation or modern environmental protections for the Coldwater band.
"The minister [of Indigenous Affairs] is not a referee, as the courts have put it. She is supposed to be in Coldwater's camp . . . The standard was as though she was managing her own land," said Matthew Kirchner, lawyer for the Coldwater band. "As I said to the court in the oral hearing, none of us would have agreed to this transaction if it was our land. But the minister went ahead and did it for Coldwater."
The ruling from the Federal Court requires the Ministry of Indigenous Affairs to renegotiate an easement agreement that satisfies the interests of the Coldwater band, Kirchner said.
"We are very happy that the court recognized the importance of our land to the Coldwater people and that it is holding the Crown to a high standard of conduct in making decisions about our land," Coldwater Chief Lee Spahan said in a release. "The council has always believed that the minister was not looking out for our best interests in this deal and it is gratifying to finally have that confirmed by the court. Now things must change. This is a great day for Coldwater and all First Nations."
The Coldwater Indian Band is scheduled to return to court on Oct. 2 for a different case regarding the the route for the Trans Mountain pipeline expansion project, which would see the pipeline pass over lands that act as a recharge area for the band's aquifer.
On this front, Spahan vowed to continue the fight against the expansion project.
"Within the last two or three years, due to the drought concern, the water in the Nicola Valley is very low. The Coldwater River is like a creek right now. We need to be looking after our watersheds, which go into our aquifers, which feed our communities," Spahan said. "We need to really look after that to make sure we have it not only for today, but for future generations, also."
-- Cole Wagner, Merritt Herald