Dear Band Members,

We are very happy to introduce you to the 37th weekly newsletter of Whispering Pines/Clinton Indian Band!

With this newsletter, we aim to keep all our Band members informed about the latest happenings, events, and news within the community. We are distributing this newsletter by email, so please encourage everyone to get their email address into   manager@wpcib.com, so they can be added to the list.
 
Weekly Updates - October 27, 2017
Entertaining and Education Luncheon with Dr. Art Hister
Whispering Pines Clinton Indian Band Community Updates

Annual General Meeting

The Whispering Pines Clinton Indian Band plans to hold the Annual General Meeting (AGM) on December 9, 2017. The location of the AGM and further details will be made available soon to the community. Please watch for further updates and or contact the WPCIB Administration for additional information as becomes available. 

Completion of Community Water Treatment System Upgrade

This past week, an important community meeting was held at the Band Community Hall where the Chief and Council, Urban Systems, the First Nations Health Authority and INAC provided an update on the successful completion of the upgrade to the community’s drinking water reservoir. The project was successfully completed. All required tests have taken place and the water is deemed safe to drink and meeting required drinking standards and guidelines. The Chief and Council would like to thank all community members who took time to come out and participate and celebrate this important achievement for the community. 

Specific Claim Work Proceeding

The WPCIB remains in contact with the Union of BC Indian Chiefs and legal counsel, Mandell-Pinder, regarding the status of the preparation of a specific claim in relation to the former WPCIB Clinton reserve. A draft completed claim will be sent to the WPCIB for review. This will be made available for viewing by community members. The WPCIB Chief and Council is coordinating a time where the file lawyer from Mandell- Pinder will be able available to review and explain the basis of the claim, what the claim hopes to achieve and important next steps in the specific claims process. Please stay tuned for further details. 
 
Rising up: First Nations Focus on Relieving Poverty Through Taking Ownership of Resources

Indigenous and environmental agendas are not the same, despite often being lumped together in a larger protest movement.

By R.P. Stastny
Aug. 14, 2017, 2:06 p.m.
Joe Dion, CEO of Frog Lake First Energy Resources, says First Nations need to take control of their own destiny. Image: Jason Franson/JWN

Canada’s First Nations have worked long and hard to have rights recognized by governments and industry. Those rights were recently reinforced by the United Nations’ Declaration On the Rights of Indigenous Peoples, which sets out global expectations for how governments should deal with indigenous communities. So First Nations aren’t about to let environmental groups get in the way of industrial projects that communities need in order to build schools, better housing and a healthier future. 

“Environmentalists have hijacked the indigenous agenda,” Joe Dion, chief executive officer of Frog Lake Energy Resources, told an audience at the Indigenous Conference on Energy and Mining at this year’s Global Petroleum Show.

“Our rights are constitutionally entrenched in Canada and have allowed us to win all these court cases, but I’m afraid that we have been hijacked and we have basically lost control.”

In an interview with Oilweek following his presentation, Dion explained that the indigenous and environmental agendas are not the same, despite often being lumped together in a larger protest movement.

Check out the latest Oilweek now for insight into Canada's oilpatch people, technology and trends.

Read Oilweek Now!

As constitutional coordinator for the National Indian Brotherhood in the early 1980s, Dion played a direct role in the entrenchment of indigenous rights in the Canadian Constitution under then–prime minister Pierre Trudeau. The political power that came out of that now holds a strong allure for other groups.

“We have this powerful leverage and the NGOs have used that to basically achieve their agenda,” Dion said.
“Some of these environmental groups just want to stop development at all costs. In that case, go lobby the Chinese. Go lobby the Russians. If you want to have an impact, go there because that’s where the big impacts are happening.”

First Nations and environmentalists share a concern for Earth’s land, water and air. They often stand on the same side of the fence on these issues, but the core of the indigenous agenda is raising its communities from poverty.

Recently, Chief Jim Boucher of the Fort McKay First Nation told an Assembly of First Nations gathering in Gatineau, Que., that environmentalists should be ignored because they are to blame for widespread poverty in Canada’s North.

In contrast, the community of Fort McKay in the heart of the oilsands has an unemployment rate of zero, an average annual income of $120,000 and financial holdings in excess of $2 billion. It’s the result of working with Canada’s oil and gas industry. That money has been invested into education, long-term care homes for seniors and other community infrastructure.
Boucher said that without this direct involvement in industrial projects, the Fort McKay First Nation would be living “in poverty right now.”

Dion takes a similar view. Frog Lake Energy Resources is an oil and gas exploration and production company that’s wholly owned by the people of the Frog Lake First Nation. The company is part of an indigenous expansion into equity ownership in natural resource development and infrastructure projects. This goes beyond just taking jobs or securing service contracts.

Fort McKay’s agreement last year with Suncor to buy a 34.3 per cent equity interest in the company’s East Tank Farm Development is another example.

Economics is the driver for this participation, but traditional indigenous values are part of the package as well.

“Of course, we’ll protect the environment,” Dion said. “Stopping development isn’t hard to do, but how are you going to eat? We need to speak up for the poverty that is out there in our communities. We need to address how we’re going to get our people out of poverty when the majority of wealth is being held by so few.

“Poverty outstrips all of the concerns about climate change and environment. If you focus too much on climate change, First Nations will be at a standstill and we won’t have any development. So climate change is important, but it’s not everything.”

He points to a southern Alberta First Nation that recently struck a deal with an Australian coal mining company. For the community, it’s an opportunity to build capacity; however, being a coal project, environmental groups oppose the project.

“So here we have a situation,” Dion said, “where the Blackfoot folks told the environmentalists, ‘We don’t need you. We’ll protect the environment. We’ll represent the environmental issues ourselves.’”

Rent or own?

Today, Frog Lake Resources is a small producer, with production reaching 3,000 bbls/d. But its vision for 2020 is to “continuously create business opportunities and deliver long-term value for the benefit of the Frog Lake First Nation and its partners.”

Crossing the divide between resource extraction support and resource extraction lead is a big step for First Nations. But it’s one that Chris Insley, Member of the New Zealand Deep South (Antarctic) National Science Challenge Maori Advisory Panel, 37 Degrees South Limited, says indigenous people need to make.

The return speaker to this year’s Indigenous Conference on Energy and Mining extended the discussion to key lessons from New Zealand’s Maori economy, which is currently worth about $42 billion and is growing at a faster rate than the New Zealand economy. (This compares to C$30 billion “directly linked” to the contribution of indigenous peoples to the Canadian economy, $12 billion of which is directly attributable to indigenous businesses, according to Philip Jennings, associate deputy minister of natural resources.)

“We own half of the New Zealand fishing industry, 30 to 40 per cent of New Zealand’s farming industry, and in forestry we have 30 to 40 per cent ownership,” Insley told the audience during the Spotlight on Indigenous Leaders panel discussion. The Maori are also becoming more active in geothermal and hydro and are currently attempting to secure financing for a major solar project.

“So we are practically involved in the ownership of power stations,” Insley said. “My point is we are not passive. We are active players, where we take a lead rather than just bidding on contracts.”

Insley urged indigenous people to aspire to control and to have ownership of the industries associated with their lands. Ownership provides the strongest returns on investment. Control allows indigenous traditional values to guide these operations.

“Our community leaders take a long-term view,” he said. “There is some tension between the classic western short-term view—work, make money in two or three years and, if that doesn’t work, don’t do it. This is the difference in these discussions.”

Education is fundamental to realizing indigenous ownership. The Maori recognized that the lack of education was the biggest obstacle to project ownership, so it made an effort to provide high-quality government and leadership-development programs to its people in their own language.

“They’re being taught how to read a balance sheet. They’re being taught whether an investment is a good deal or a dumb deal. They’re being taught about strategic plans and how to measure the performance of an organization,” Insley said.
Those efforts are paralleled in schools. Maori children are encouraged by parents and community elders to attain the highest levels of education at the best universities around the world.

In Canada, the Suncor/Fort McKay tank farm deal and other ventures suggest that local industry is ready to extend ownership opportunities to indigenous groups. The challenge, however, is often financial capacity.

“I’ve always recognized indigenous equity ownership as being something that we would be open to,” Ian Anderson, president of Kinder Morgan Canada, said during the Building Stronger Connections panel discussion.

Anderson said that he had worked behind the scenes in support of First Nations equity investment in the Trans Mountain Pipeline expansion, which would greatly increase Alberta's oil production access to tidewater. Indigenous partnership, however, didn’t come to fruition.

“I’ve never ruled it out,” Anderson added. “At the core of it, though, is for that kind of ownership and meaningful investment in resource development, First Nations need capacity. So where does that capacity come from? And how do they build up capacity?”

In Fort McKay’s case, decades of work that started with “the humble sparks of jobs and opportunities and contracts” brought it to where it stands today.

Anderson also noted that there may be a role for government in helping to build indigenous capacity by extending loan guarantees or other financial vehicles.

“So I think there is a meeting of minds on indigenous ownership and, over time, we will see it,” Anderson said.

And when that time comes, indigenous groups and environmental groups may increasingly find themselves on opposite sides of the fence.
 
Ajax mine: Comments Now Closed, Decision Looms

By
Andrea Klassen

October 12, 2017 
 

The proposed site of the Ajax mine, south of Aberdeen. KTW file photo
 
The final public comment period on the proposed Ajax mine has ended.

As of this past Tuesday, the provincial and federal governments are no longer collecting feedback on the copper and gold mine Polish-owned KGHM wants to build south of Aberdeen.

Input received over the two-month window is available for viewing online here.

More than 650 comments were submitted.

In a statement posted to its website, the B.C. Environmental Assessment Office (BCEAO) said it is reviewing the submissions and will make a summary of their contents to include in a decision-making package for Minister of Environment George Heyman and Minister of Energy and Mines Michelle Mungall.

The ministers will also have a report co-written by the BCEAO and Canadian Environmental Assessment Agency on the mine’s likely effects and a list of suggested conditions for Ajax’s approval.

A version of the report released to the public in August was seen as too favourable to the project by some mine critics, including the City of Kamloops, which opposes the project. The EAO said it will consider revisions to its report “where appropriate” before turning the document over to politicians. It’s not clear how long that process will take.

In addition to the report, ministers will also consider a package from the Stk’emlupsemc Te Secwepemc Nation (which represents the Skeetchestn and Tk’emlups First Nations), which held its own panel review before opting to oppose the mine due to heritage and environmental concerns. The City of Kamloops has also submitted a package outlining its environmental concerns.

Once provincial ministers have the final reports on Ajax, they will have 45 days to decide whether to award the mine an environmental certificate, allowing it to proceed to further stages of permitting required pre-construction.

There is no deadline by which federal Environment Minister Catherine McKenna must make her decision.

In order to proceed, the mine application must be approved by both the province and Ottawa.

NOTE FROM WPCIB:

The WPCIB participated in the above noted comment period and provided the Crown notice of its rights, interests, issues and concerns regarding the proposed Ajax Mine. The WPCIB will continue to monitor developments related to the Project and keep the community up to date on the latest developments. The WPCIB arrived at that view, that the Project should not proceed as currently proposed and poses potential risks to people’s health and well-being, area rivers and fisheries that WPCIB rely on and the mine will impact WPCIB rights and title. 
 
Interior First Nation Wins Case Against Government Of Canada on Kinder Morgan Pipeline

CTV NEWS 
Dirk Meissner, The Canadian Press 
Published Wednesday, September 27, 2017 8:32PM EDT 
Last Updated Thursday, September 28

VANCOUVER -- The Federal Court of Appeal has set aside a government decision approving the expansion of Kinder Morgan's oil pipeline through the Coldwater Indian Band reserve south of Merritt, B.C.

In a split decision, the three-judge panel ruled the federal minister of aboriginal and northern affairs failed to assess the impacts of a pipeline easement on the Coldwater band. The ruling says the minister had a continuing duty to protect the band's interests on its reserve from an exploitive bargain.

Coldwater Band Chief Lee Spahan said Wednesday the band was celebrating the decision that also forces a review of the original pipeline agreement made 65 years ago. 

The original Trans Mountain oil pipeline was constructed through the small reserve in 1952. The band, which has about 860 members, received a one-time payment of $1,292.

"Back then our people weren't allowed to hire lawyers," Spahan said. "We weren't allowed to hire consultants. They just put the agreement in front of the leadership and they were told to sign."

When Kinder Morgan went back to the federal government to increase the capacity of the pipeline between B.C. and Alberta, the First Nation expressed its concern.

"They also expressed their desire that the minister take the opportunity afforded by the request for consent to the assignment to modernize the terms of the indenture so as to include more generous compensation for the band," the ruling says.

The band wrote a letter to the federal department saying it was not in its interest to consent to the pipeline expansion. In December 2014, the government consented to the doubling of the pipeline through the reserve.

The ruling stated the federal minister's decision to assess the current and ongoing impact of the pipeline easement, which includes plans by Kinder Morgan to expand its capacity on the original pipeline by 50,000 barrels a day, was unreasonable.

Coldwater's lawyer, Matthew Kirchner, said the ruling strongly clarifies the federal minister's duty to ensure the band's interest in its lands are protected.

"What should Coldwater be getting now for this easement?" he said. "How does the minister now protect Coldwater's interest in the land now and going forward?"

Spahan said the decision will help Coldwater fight to protect its land.

He said Coldwater is in court again Monday to oppose Kinder Morgan's plan to locate part of its second pipeline project over an aquifer that supplies community water.

"I feel very pleased and happy," said Spahan. "It's another step forward to letting the government know they have to deal with us now."

"I would return the matter to the responsible minister for redetermination," says the 41-page decision.

In a statement, the office of the minister of Crown-Indigenous relations and northern affairs said "the minister would welcome to meet the Coldwater leadership to find a path forward and work together to address these issues."

Kinder Morgan spokeswoman Ali Hounsell said in a statement that the court decision does not affect the daily operations of the Trans Mountain pipeline or the expansion project.
 
The Details of the Coldwater Case

Canada: Federal Court Of Appeal Requires Minister To Discharge Fiduciary Duty In Consent To Assignment Of First Nations Pipeline Easement
Last Updated: October 11 2017
Article by Miles F. Pittman and Ramsey Glass
Borden Ladner Gervais

Overview

This decision concerns the 2014 consent by the federal Minister of Aboriginal Affairs and Northern Development (the "Minister") to the assignment of a pipeline easement as part of a corporate reorganization undertaken by Kinder Morgan.  The easement forms part of the Trans Mountain pipeline, and crosses the Coldwater Indian Reserve (the "Reserve"), and accordingly ministerial consent to the assignment between Kinder Morgan subsidiaries was required.

The Crown owed the Coldwater Indian Band ("Coldwater") a fiduciary duty when considering whether or not to consent to the assignment. The Federal Court of Appeal found that, while the Minister considered the ability of the proposed assignee to discharge the obligations under the easement, he was also required to consider whether a consent to the assignment of the easement on its original terms would be in Coldwater's best interest, while also being mindful of the public interest in the pipeline's ongoing operation. The Minister did not undertake this consideration, and the consent was returned to the Minister for reconsideration having regard to its obligations.

Facts

Trans Mountain Pipeline was incorporated in 1951. Trans Mountain required multiple easements to be built, including one from Coldwater. The easement ("Easement") was agreed to by Coldwater Band Council in 1955, and was granted over approximately 6.5 km of the Reserve. Coldwater received $1,292.00 for the Easement, calculated at the standard rate of the time, and has since that time also been charging Kinder Morgan property tax for the easement.

The Easement contained a restriction on assignment, in that it could not be assigned without consent of the responsible minister. Between 2002 and 2007, Trans Mountain underwent a series of corporate mergers, with the result that Trans Mountain was ultimately owned by Kinder Morgan, but was owned by a different subsidiary of Kinder Morgan.  Therefore, in order to assign the Easement successfully to the subsidiary that owned the pipeline, ministerial consent was required.  

In July 2012, Kinder Morgan sought the consent of the Minister for the assignment of the Easement. Shortly thereafter, Coldwater was given notice of the request, and began communicating with the Minister about the terms of the consent. In 2013, Kinder Morgan applied to the National Energy Board for a certificate of public convenience and necessity in order to enlarge the pipeline so as to approximately triple its capacity.  Coldwater expressed its concern about the expansion, and also expressed its desire to the Minister to modernize the Easement, including terms such as environmental practices and enhanced rights for the Band.

Coldwater subsequently advised the Minister that it was not in the interest of Coldwater to consent to the assignment of the Easement and that the Minister should refuse consent to the assignment. Shortly thereafter, the Minister and the Tk'emlúps te Secwépemc First Nation initiated an optional process for the purposes of modernizing pipeline easements over multiple reserves. Coldwater was invited to partake in the process, with a focus on updating the Easement, and did so for a time, but later removed itself from the modernization process because many of the provisions it had proposed were not included in in the modernized easement.  

The Minister provided his consent to the assignment on December 19, 2014.
In a letter informing Coldwater of the decision, the Minister said he considered "the grantee credit record, grantee environmental record, grantee contract record, grantee eligibility, valid grantor, adequate description, appropriate circumstances and proper documentation for the assignment of the Trans Mountain Pipeline." However, the decision did not include consideration of whether the assignment would minimally impair Coldwater's interest in the use and enjoyment of the land, and also did not include consideration of the impact of the continuation of the terms of the Easement on Coldwater's right to use and enjoy the reserve lands. 

Decision

In a majority decision of the court, the Minister's decision to consent to the assignment was set aside and returned to the Minister for redetermination, taking into account the Crown's fiduciary duty to Coldwater in consenting to the assignment, not just assessing the ability of the assignee to perform the obligations under the Easement. In short, the Court did not tell the Minister what to decide, only the matters to be considered in arriving at the decision.

The fiduciary duty requires the Minister "to exercise his discretion in a manner consistent with his obligations of loyalty and good faith and to act in what he reasonably and with diligence regards as Coldwater's best interest while, at the same time, being mindful of the public interest in the pipeline's continued operation" (para. 60). The Court could find no evidence on the record that the duty was discharged. Further, as a result of the modernization process initiated by the Minister, he ought to have known that the terms of the Easement were no longer responsive to current concerns. The Minister was "therefore required to consider whether the protection available to Coldwater under the modernized template was adequate in order to protect the land, and thus minimally impair Coldwater's interest in the land" (para. 93).

The Court also noted that the Minister was not required to consider the expansion of the Trans Mountain pipeline in discharging its duty – Kinder Morgan has advised Coldwater that the proposed expansion will not take place without Coldwater's consent.

The dissenting judgement from Webb JA focused on the fact that the assignment was from one subsidiary of Kinder Morgan to another subsidiary, and therefore it was impossible to see how Coldwater's use or enjoyment of the land would be any different as a result of the assignment. Further, it would be possible that the interest of the proposed assignee would be held in trust, regardless of the minister's consent. Therefore, irrespective of whether the fiduciary duty had been discharged, the result of consent or non-consent would be the same.
 
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The Whispering Pines/Clinton Indian Band Community | 615 Whispering Pines Drive, Kamloops, B.C. V2B 8S4