Constitutionality of Kinder Morgan Trans Mountain Review Process in Question: Open Letter

Fatally Flawed, Superficial Review Creates Legal Risks for Pipeline and Tanker Proposal-

Victoria, Coast Salish Territories –Today, 12 First Nations released an open letter slamming the National Energy Board (“NEB”) review of the Kinder Morgan Trans Mountain proposal, calling it “fatally flawed” and questioning the constitutionality of the federal government’s approach to First Nations consultation.  The letter comes on the final day of the NEB’s hearings on oral Aboriginal traditional evidence.

“We are united in expressing our grave concerns about how the review is unfolding,” said Chief Nelson Leon of Adams Lake Indian Band. “The NEB process to date has been fatally flawed, and we welcome further signatories to the letter.”

“The Federal government has stated repeatedly that they will rely on the NEB process to identify, consider and address impacts on Aboriginal rights and fulfill its constitutional duty to consult,” said Chief Ian Campbell of the Squamish Nation. “Yet, they have not consulted on the framework of the NEB review, resulting in a superficial process where Kinder Morgan’s evidence will not be tested through cross-examination, but through written questions which have already proven to be an inadequate substitute.”

In June, nearly 50 intervenors applied to have Kinder Morgan respond to over 2,000 questions that were evasive or unresponsive. On September 26, 2014 the NEB ordered that less than 5% of those responses needed to be answered.

The letter also slams the NEB’s capacity funding for the project. “The NEB has not provided sufficient funding for any meaningful participation,” said Chief Percy Joe of Shackan Indian Band, who received only $1,250 to participate in the hearing. “In the meantime, the process is steamrolling ahead, and we are spending thousands of dollars from our limited budgets to be ‘consulted.’ This is not honourable conduct by the Crown.”

Finally, the letter calls the Crown’s approach to consultation with the Kinder Morgan Project dissatisfactory and legally deficient. “We do not believe that the Crown’s approach is consistent with its constitutional duties to First Nations,” said Chief Maureen Thomas of Tsleil-Waututh Nation. “That is why we have appealed the original NEB hearing order in the Federal Court of Appeal and why we stand united with our First Nations relatives today:  Reminding the Crown of its duty to work with First Nations to assess this project in a manner that respects our decision-making authority and jurisdiction.”

Signatories to the letter, which is available at:, include:

Chief Nelson Leon, Adams Lake Indian Band

Chief Susan Miller, Katzie First Nation

Chief Marilyn Gabriel, Kwantlen First Nation

Chief Wayne Sparrow, Musqueam Indian Band

Chief Norma Webb, Peters Band

Chief Percy Joe, Shackan Indian Band

Chief Ian Campbell, Squamish Nation

Jesse James, Shxw’ōwhámel First Nation

Chief Gordon Planes, T’Sou-ke Nation

Chief Harvey Underwood, Tsawout First Nation

Chief Maureen Thomas, Tsleil-Waututh Nation

Chief Harvey McLeod, Upper Nicola Indian Band


Download (PDF, 217KB)

For further information contact:
Sarah Thomas; Tsleil-Waututh Nation; 604-358-3371;
Chief Nelson Leon; Adams Lake Indian Band; (250) 572-5594


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