A small First Nation's environmental assessment of Kinder Morgan Canada's $5.4-billion oilsands pipeline expansion could "delay or derail" the megaproject, according to a legal analysis of the report.

The scathing 90-page assessment, released Tuesday by the 570-member Tsleil-Waututh First Nation of North Vancouver, includes separate scientific research that says Kinder Morgan has underestimated the environmental and public health risks of major and minor oil spills in Burrard Inlet.

"The assessment lays out the profound impacts of the project on Tsleil-Waututh title and rights, thus setting the stage for litigation that could delay or derail" the expansion, according to the two-page analysis of the report by six law professors, including the University of B.C.'s Gordon Christie.

The report concludes the company's plan to triple the capacity of its pipeline system from Edmonton to Burnaby is contrary to the interests of the Tsleil-Waututh First Nation and should be opposed by its chief and council.

"All experts concluded in their reports that the (company's) environmental assessment is inadequate and should not be relied upon to assess the potential effects of the proposal," according to the full report.

Kinder Morgan Canada's plan "has the potential to affect the Tsleil-Waututh community profoundly."

The Tsleil-Waututh reserve is in North Vancouver less than two kilometres across Burrard Inlet from the Kinder Morgan Canada's Westridge oil tanker terminal.

Kinder Morgan Canada is seeking National Energy Board approval to increase the capacity of its Trans Mountain Pipeline to 890,000 barrels a day from 300,000. The federal cabinet will make the final decision.

On Tuesday, the Tseil-Waututh drew about 100 people to the shores of the Burrard Inlet to bless the report with a traditional song and dance before the Tseil-Waututh announced it would not approve the pipeline expansion on its sacred land.

Rueben George, a grandson of Chief Dan George and a member of the Sacred Trust Initiative, said Tuesday his Tsleil-Waututh ancestors had long lived off the water and the land and had striven to protect and look after it. The water provided much of the food for his people for generations, he said, and the First Nation has been attempting in recent years to restore it by boosting salmon stocks and improving the ecosystem.

The proposed pipeline, he said, is "hindering our efforts."

"These tankers and pipelines and the port behind us. ... What they're doing is not good," George said. "It goes against our laws on our land and water. That's why we're saying No. We're not going to allow this to happen."

Ali Hounsell, spokesman for the Trans Mountain expansion project, said in an email that Trans Mountain will review the report and fully respond through the process, Hounsell said.

Hounsell said Kinder Morgan "deeply respects aboriginal rights and title and we acknowledge the Crown's responsibility to consult with representatives of First Nations." The company has consulted with about 133 First Nations along the pipeline route.

"Since our project was announced, Trans Mountain has attempted to have multiple discussions with the Tseil-Waututh First Nation and with the release of this new report, we once again invite the Tseil-Waututh First Nation to come to the table," Hounsell said.

George argues the Canadian government is allied with the pipeline companies and the people have to stand together.

"You can't put a price on the sacred. You can't put a price on our children. You can't put a price on who we are. This is for our future generation."

If the project goes ahead, the number of oil tankers loading in Burrard Inlet would increase to 34 a month, from five.

The six law professors said the 90-page report from the First Nation is "pioneering" in its scope and "legally significant."

The assessment is particularly relevant for Kinder Morgan Canada, a subsidiary of the Texas-based energy infrastructure giant, given the landmark 2014 Supreme Court of Canada Tsilhqot'in ruling that expanded the scope of aboriginal rights and title to land, they argue.

It was signed by Christie, director of the UBC's Indigenous Legal Studies Program; Sakej Youngblood Henderson, research director of the University of Saskatchewan's Native Law Centre of Canada; Andree Boisselle, assistant professor at Osgoode Hall Law School; and Nicole Schabus, Janna Promislow, and Charis Kamphuis, all with the law faculty at Thompson Rivers University in Kamloops.

The full Tsleil-Waututh report assessed the project based on the objectives of its 2009 Marine Stewardship Project for Burrard Inlet, and relied on five reports it commissioned — some which were made public earlier this month — to consider the risks.

Simon Fraser University's Thomas Gunton and Sean Broadbent conducted an oil spill risk assessment. Jerry Galt of Edmonds, Wash.-based Genwest Systems did an oil spill trajectory analysis. Dr. Jeffrey Short of Alaska-based JWS Consulting looked at the "behaviour, fate, and consequences" of spilled diluted bitumen. Seldovia, Alaska-based Nuka Research did a study the "gap and capacity analysis" of the oil spill response regime in the area. Levelton Consultants of Richmond, assessed the risks to air quality in the residential area around Burrard Inlet.

The report, noting the seven-fold increase in oil tanker traffic if the project proceeds, said it necessarily increases the likelihood of spills both large and small.

"Because spilled oil cannot be cleaned up completely, the consequences are dire for sensitive sites, habitat, and species, and for the Tsleil-Waututh subsistence economy, cultural activities, and contemporary economy," declares the executive summary.

It pointed to the 2007 spill at the Westridge terminal that dumped 600 barrels of oil into Burrard Inlet, as well as last month's spill involving the MV Marathassa that spilled 16 barrels of bunker fuel into English Bay.

"The Tsleil-Waututh cannot accept the increased risks, effects, and consequences of even another small incident like the 2007 Westridge or 2015 MV Marathassa oil spills, let alone a worst-case spill."

The scientific report from the two SFU academics, one of five cited in the appendix of the full assessment, said Kinder Morgan has underestimated the risk of a spill. Gunton and Broadbent assert that there is a 79- to 87-per-cent likelihood of a spill at the terminal or in the inlet over any 50-year period. There is a 37-per-cent likelihood over 50 years of a spill higher than 10,000 barrels, and a 29-per-cent likelihood of a worst-case spill of 100,000-plus barrels.

(The methodology used by the SFU academics has been challenged by industry, since they its relies on historical data before the introduction of mandatory double-hull tankers, which has dramatically reduced the number of major tanker spills. )

The worst-case spill would kill between 100,000 to 500,000 birds "and trigger major disruptions of food-web dynamics, resulting in environmental collapse," according to JWS Consulting.

"I don't think anyone can conceive how absolutely horrible an oil spill will be in the Burrard Inlet," said B.C. Grand Chief Stewart Phillip. "It only takes one First Nation to stand up and say absolutely this pipeline will not pass."

Charlene Aleck, a Tsleil-Waututh councillor, said the Tsleil-Waututh had voted 100 per cent to reject the pipeline three years ago and said the report underlines the importance of saying No.

Phillip said the study by the Tseil-Waututh backs up the risks and he is "absolutely confident" the pipeline expansion won't go ahead. Although the question of national interest would be decided on Oct. 19, Phillip said there had been a transformation taking place among Canadians in terms of pipeline projects and First Nations are no longer "standing alone" in its opposition.

"Indigenous people have been saying no for a very long time. Now we have more legal tools to fight and oppose these," Phillip said. "The Tsilhquot'in decision provides us with a tremendous amount of power in that it recognizes out jurisdiction and authority. It was very clear: we have a duty and obligation to protect our lands and water for future generations. That's precisely what we intend to do."

Scott Smith, a lawyer for the Tsleil-Waututh, said it will be difficult for Kinder Morgan to proceed without consent of the First Nation given the recent Supreme Court decisions. He expects there will be more assessments done by First Nations.

"There's huge risks for Kinder Morgan and Crown going forward," Smith said. He said the First Nation has reached out to the Crown on several occasions but the government has not responded.

"This project will cause significant impact to the Burrard Inlet and affect the Tsleil-Waututh titles and rights going forward," he said. "The Crown has to sit down with the Nation, but had refused to have a discussion. The Nation has been asking for the table for at least two years. The Crown has refused to sit down."

Nuka Research found that even in a best-case cleanup scenario, more than half the volume of oil spilled would remain in the water, on land or, due to the rapid evaporation of the condensate that is used to dilute the bitumen, in the air.

Levelton, meanwhile, warned that more than one million residents around Burrard Inlet "are at risk of acute health effects from toxic air emissions from a worst-case oil spill."

The assessment said the project could destroy the First Nation's plan to restore the ecological health of Burrard Inlet — Ottawa is close to allowing the first shellfish harvest in the inlet since 1972, while salmon returns to Indian River have increased over the past three decades — while also jeopardizing its current economic initiatives such as property development and "cultural" tourism.

"Environmental damage, safety hazards, the perception of pollution, and impaired views will dissuade business partners, customers and potential customers."

The report stresses the daunting proximity of the terminal and the expected increase in tanker traffic.

"We can see (the terminal) from the windows of our houses," the report states in the introduction next to a photograph of a Tsleil-Waututh home with the terminal in the background. "Every arriving or departing tanker passes in front of our homes and their wakes strike our shores."

It describes a history of a people with a "sacred" obligation to protect its territory before contact in 1792, at the assertion of the British Crown's sovereignty in 1846, and to the present day.

Once a thriving area that nourished many aboriginal communities with salmon, herring, shellfish, ducks, deer and berries, industrial development and urban sprawl have ended a subsistence economy.

Records from the B.C. Ministry of the Environment, according to the report, show that the inlet has 22 industrial effluent authorizations, resulting in 769 million cubic metres of industrial pollution entering the inlet each year.

"Marine foods that form the basis of the Tsleil-Waututh subsistence economy are now scarce, contaminated or inaccessible," said the report, leading to a wage-based economy and "store-bought" nourishment that has resulted in higher diabetes and cancer rates.

While the First Nation is engaged in both the Fraser River and Indian River fisheries, those provide each member one kilogram of sockeye a week compared to one kilogram a day in the past.

The report says the First Nation is "actively working to restore" the inlet's environmental integrity through the 2009 stewardship policy, and the threat from Kinder Morgan's project represents an improper interference with the inherent right to conduct that work.

"Lack of a robust subsistence economy is a fundamental indicator that many other elements of our title, rights, and interests ... are damaged, harmed or diminished."

poneil@postmedia.com

Twitter.com/poneilinottawa

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