Originally slated to begin construction in September, the future of the Trans Mountain expansion project is now in the hands of three Federal judges.

Over the course of two weeks in early October, judges heard arguments at the Federal Court of Appeal from nine applicants, who were disputing the legitimacy of the federal government’s approval of the Trans Mountain project.

Among the applicants were a number of First Nations, including the Coldwater Band and Upper Nicola Band.

Each of the applicants presented different grievances with the pipeline’s approval process, explained Matthew Kirchner, a lawyer representing both the Coldwater Band and the Squamish First Nation in the appeal.

Despite the numerous applicants, there were many elements of the consultation process that were common to all the First Nations’ complaints, added Kirchner.

Coldwater Band Chief Lee Spahan. (Photo courtesy of Hayley Lohn).

The Coldwater Band contends that the proposed route for the pipeline through the Coldwater Valley would endanger the band’s aquifer — the only source of drinking water for more than 90 per cent of residents on the Coldwater reserve, located about 10 kilometres south of Merritt. Despite proposing an alternative route which would see the new pipeline cross through territory on the west side of the valley, Coldwater Chief Lee Spahan said neither his band’s concerns — nor the proposed western route — were addressed at National Energy Board hearings, which preceded the pipeline receiving federal approval in 2016.

Kinder Morgan’s preferred route through the Coldwater Valley would see the pipeline bypassing the borders of the Coldwater’s reserve to the east — directly crossing both Kwinshatin and Skugan Creeks. According to a groundwater study conducted ahead of the NEB hearings, the only consistent source of recharge to the aquifer is the percolation of water from those creeks. The federal approval of this route is the subject of the Coldwater Band’s court challenge. 

“We need to be looking after our watersheds, which go into our aquifers, which feeds our communities,” Spahan told the Herald in September.

Not only are the creeks vital to the aquifer, the band also presented arguments detailing the cultural significance of those sites to the First Nation’s way of life. Both creeks, as well as the Coldwater River, are used in traditional sweat lodge ceremonies, while Coldwater traditions hold that spiritual beings live along the creeks in the band’s traditional territory. 

The geography of the disputed routing of the Trans Mountain Expansion Project through the Coldwater Valley.

Over the course of the two weeks in court, federal judges also heard from lawyers representing the Upper Nicola Band, who argued that the federal government failed in its duty to consult with First Nations before issuing approval to the Kinder Morgan project.

“The [lack of] consultation was one of the main issues we raised throughout the whole process” said Chief Harvey McLeod of the Upper Nicola Band. “There should have been some deep consultation with the Nation and this community, and that didn’t occur.”

“The approvals granted followed many years of engagement and consultation with communities, Aboriginal groups and individuals,” stated Ali Hounsell, a spokesperson for the Trans Mountain expansion project, in an email to the Herald. “We’re excited to be moving into the construction phase of the project and we’re confident that we will build and operate the expansion in a way that respects the values and priorities of Canadians.”

But Kinder Morgan has already bypassed a goal of beginning construction in September, and is facing a number of delays due to permitting issues, court battles with First Nations, and a new B.C. government which has announced its opposition to the previously-approved pipeline.

MORE: Coldwater Band wins Federal Court battle over Trans Mountain easement
Coldwater chief says pipeline poses risk to aquifer
Coldwater Indian Band issues court challenge on pipeline

According to Kirchner, there are a range of possible outcomes, depending on how the judges decide various issues. 

“I can tell you what the position that we took was, based on what the Supreme Court of Canada recently said. If the Crown failed in its duty to consult, the result is that the court should set aside the federal approval,” said Kirchner. 

Kinder Morgan drops request to place fish nets

Kinder Morgan has withdrawn its request to the National Energy Board (NEB) to allow it to continue placing fish deterrent mats in streams its Trans Mountain pipeline expansion would cross under.

The company has determined the window of opportunity to effectively install the mats to deter spawning has already passed.

“We will be reassessing the specified water crossings and determining if we need to adjust our construction methodologies to meet commitments to minimize environmental impacts,” stated a press release from Kinder Morgan subsidiary Trans Mountain.

The company has indicated that not being able to proceed with the installation of the spawning deterrent mats could delay parts of the $7.4 million construction project by a year.

The fish spawning deterrent mats already put in place in seven watercourses near Valemount, B.C. and Hinton, Alta. are expected to be removed sometime after the spawning season, the press release want on to state.

In late September, the NEB ordered Kinder Morgan to stop installing these mats as it had not yet met all the conditions required to be able to do so.

The mats consist of plastic snow fencing pinned down with rocks.