OTTAWA—It’s all a bit rich to Chief Lee Spahan. The Canadian government wants to build another pipeline through his reserve. But he says it doesn’t have permission for the one that’s already there.

How is the Coldwater First Nation supposed to “consent” to that?

“The pipeline is in trespass right now,” Spahan told the Star by phone this week from the Coldwater reserve in the British Columbia interior, just south of the town of Merritt.

“They’re trying to move on the expansion pipeline before they even deal with us on the first one,” he said.

Spahan was talking about the Trans Mountain pipeline, of course — the 1,100-km tube that has carried Alberta crude from the oilsands to the B.C. coast. since it was built in 1956, and that Ottawa hopes to expand by building a twin line along the existing route, tripling capacity. Back in the ‘50s, Coldwater granted a pipeline right-of-way, in exchange for $2,417 and annual property tax payments, court records show.

But that right-of-way is now in limbo.

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In 2017, a court in Canada struck down a government decision to transfer the right-of-way to Kinder Morgan, the Texas-based oil giant that bought Trans Mountain more than a decade ago and sold it to Ottawa last year for $4.5 billion. The court ruled Ottawa failed to assess the impacts of Coldwater’s “right to use and enjoy its lands,” and asked the government to reconsider the decision to green-light the right-of-way for the pipeline’s new owners.

It’s just one wrinkle in the complex undertaking the Liberal government has embarked upon to convince Canada’s courts it has done what is necessary to build the Trans Mountain expansion. One major aspect of that is to fulfil the constitutional duty to “meaningfully consult” First Nations along the pipeline route — many of which, like Coldwater, are flat-out against the pipeline in the first place.

The current situation stems from a Federal Court of Appeal decision last August that quashed the Trudeau government’s approval for the expansion project. The court said Ottawa failed to consider the impacts of the sevenfold increase in oil tanker traffic, and ruled that talks with First Nations needed to be more than “note-taking” sessions and include “two-way” dialogue where efforts are made to accommodate concerns about the expanded oil pipeline.

The government, by then owners of Trans Mountain, ordered the National Energy Board to finish a new environmental review by Feb. 22, and started a fresh round of Indigenous consultations in December.

The goal of the new process, said Natural Resources Minister Amarjeet Sohi, is to satisfy the courts and “move forward on this project in the right way” — a tricky political effort to show major resource projects are possible while staying true to Prime Minister Justin Trudeau’s lofty aims of “reconciliation” with Indigenous peoples, and a credible push to fight climate change.

“We are following the direction of the court, and the court has said we can resolve these issues,” Sohi told the Star this week.

“It’s good for our economy to make sure that we move forward in a way that the pipelines that we build can stand the test of the day,” he said.

To do that, the government has revamped its consultation process to meet what it believes the court wants to see. The Liberals recruited former Supreme Court Justice Frank Iacobucci to help design the new process. Starting last December, Iacobucci held a series of roundtables with First Nations along the pipeline route. He will also report to the government at the end of the new process, issuing judgment on whether he believes the new consultations were robust enough to satisfy Canada’s legal requirements.

Meanwhile, a new unit was created in the Natural Resources department with officials from various branches of government, including fisheries, the environment and Crown-Indigenous relations. Eight “consultation teams” with five members each are relegated to different regions along the pipeline route, and an effort has been made to ensure they have members who have identified as Indigenous, government officials told the Star in a background briefing this week. Last time, in the round of consultations that failed to pass the court, there were three of these teams.

But the major difference this time around, Sohi said, is that these consultation groups are empowered to “offer solutions” during talks with Indigenous groups — a key component of the “two-way dialogue” the court ruled was absent during the failed consultations.

As the officials explained, this can mean discussions on issues like changing the depth of the proposed pipeline, or to consider altering the route to go around environmentally sensitive areas like salmon breeding grounds, or culturally significant sites like burial grounds or where there is a tradition of community berry-picking.

These discussions are easier now that Trans Mountain is a Crown corporation, the officials said; they participate in consultations alongside the government teams.

Sohi stressed, however, that the government’s view is that it must only accommodate “reasonable” concerns, and that Indigenous communities don’t have a veto over whether the project goes forward.

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“It’s a two-way dialogue, and making every sincere effort to accommodate the concerns that have been identified,” Sohi said.

“That’s what meaningful consultation means. It’s not to achieve consent. It’s making efforts to achieve consent.”

That’s where things fall apart for some Indigenous leaders. Kwikwasut’inuxw Haxwa’mis Chief Bob Chamberlin, a vocal pipeline opponent who is vice-president of the Union of British Columbia Indian Chiefs, said Canada’s support of the United Nations Declaration of Indigenous Peoples means resources projects on First Nations territory can only proceed with “free, prior and informed consent.”

What’s more, the consultation process was designed by the government, with the final decision on the pipeline expansion reserved for Trudeau and his cabinet.

“Here in B.C., it’s unceded land,” Chamberlin said, referring to how most Indigenous groups in the province have never signed treaties with the Crown.

“When the government maintains that level of control, there is no consent or recognition of our peoples’ inherent jurisdiction and authority in our lands,” he said.

Of course, not all Indigenous communities along the Trans Mountain pipeline oppose the expansion project. When Kinder Morgan owned the line, it signed 43 “mutual benefit agreements” with First Nations, deals to ensure communities get a slice of money from the revenues of the new infrastructure.

Leaders in Alberta who represent First Nations with oil and gas assets met this week to discuss trying to buy Trans Mountain from Ottawa, though Sohi told the Star the Liberals are focused on satisfying the courts to approve the expansion before they move to sell the pipeline.

But another complication is that some Indigenous leaders question the authority of First Nations band councils to consent to the project — a situation similar to that which played out in Wet’suwet’en territory this month, where hereditary chiefs supported a blockade of a natural gas pipeline that is supported by elected band councils in the region.

“Our elders are very clear with us. They said there’s no such thing as band territory,” said Chief Judy Wilson of the Neskonlith First Nation.

“Our (land) title is held collectively by the proper title holders, which is our people,” she said.

For its part, officials say the government isn’t closed-minded about consulting only with elected band councils; efforts are made to ensure talks are held with the “appropriate group,” the officials said.

But for Chief Spahan from Coldwater First Nation, there’s an element of respect that’s missing from the discussions. He said he’s asked Sohi and Crown-Indigenous Relations Minister Carolyn Bennett to visit his community in person. Instead, later this month, the government is sending a lawyer to sit down with him.

With hanging disagreements over the existing pipeline, and worries about the expansion that he wants addressed, Spahan said he hasn’t yet noticed much difference in this new round of government consultations.

“It’s very hard to trust them,” he said. “The honesty is broken.”