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For Immediate Release: January 9, 2020
Mountain Protectors
Indigenous Elder Taken Into Custody After Refusing to Sign 500-Metre Stay Away Order from Trans Mountain Facilities Two Indigenous elders are being targeted in desperate attempt by Trans Mountain to stifle dissent, avoid accountability Coast Salish Territories (Vancouver) -- After a hearing in front of a packed courtroom, Indigenous elder and Mountain Protector Jim Leyden, 67, was taken into custody this morning for refusing to sign conditions that include he stay at least 500 metres away from Trans Mountain Pipeline (TMX) facilities. Leyden and his lawyer David Fai only found out today about the conditions, which were imposed this morning by BC Supreme Court Justice Shelley Fitzpatrick at the request of Crown Counsel Monte Ruttan. Leyden, who has suffered serious health issues over the past few months, could remain in jail until his next court appearance on January 29 at 9am. On December 31, 2019, lawyers for Leyden and fellow Indigenous elder Stacy Gallagher, 57, were notified by the Crown that their clients were being charged with criminal contempt of court for alleged breaches of the TMX Injunction Order in November and December 2019. The Crown ischarging the two elders after-the-fact using an affidavit of an RCMP official and video evidence. On the days of the alleged breaches--November 15, December 2, and December 18, 2019--the RCMP did not arrest Leyden and Gallagher, who were among many others near the Trans Mountain facility, nor did the police adhere to the "five step process" required by the TMX Injunction. Leyden and Gallagher have been the only ones charged so far from those dates. For now, Gallagher is also expected to abide by the 500-metre stay away order. "This is a clear attempt to target those who are steadfast in monitoring the questionable activities of Trans Mountain," said Brandon Gosnell of the Mountain Protectors, a group formed in part to watch over the work of TMX to ensure the company is abiding by federal and provincial regulations. Leyden told Justice Fitzpatrick today that he was designated by Coast Salish Indigenous elders to play this role from the Watch House, an Indigenous-built structure that is explicitly excluded from the TMX Injunction. "The Crown, in lockstep with Trans Mountain, is trying to stifle any resistance to this pipeline and any efforts to hold Trans Mountain accountable," added Gosnell. Leyden, Gallagher, and another Indigenous defendant were previously convicted of criminal contempt in October for arrests that took place in 2018, and they are currently awaiting sentencing on March 5 and 6. Leyden and Gallagher are fixtures at the Burnaby TMX facilities and in court, supporting those arrested for breaching the Injunction. Leyden and the Mountain Protectors have repeatedly raised safety, environmental, and regulatory concerns to federal, provincial and municipal authorities, but so far no action has been taken against TMX for the violations its been accused of. The new charges represent a significant departure from prior TMX contempt cases in a couple of important ways. First, it appears the RCMP failed to adhere to Section 12 of the Injunction Order which lays out a "five step process" for arresting "any persons who breach the Order." Second, neither defendant was arrested at the time the Crown alleges the breaches took place. Both defendants found out about the charges only after the Crown made contact with their lawyers. Mountain Protectors also argue that these new attempts to target Indigenous elders monitoring the company's activities are meant to chill any kind of resistance to and oversight of TMX. Leyden is expected to be taken to the North Fraser Pretrial Centre, where he will likely remain until January 29.
Jan 9, 2020 @ 3:00 PM
@pieglue: "Trans Mountain offered many, many times to schedule chief-to-chief meetings between Trans Mountain president and CEO Ian Anderson and Chief Lee Spahan," #TMX lawyer tells the court in making arguments that Coldwater was frustrating the process before re-approval. #cdnpoli [LINK]
@gwitchinkris: Trans Mountain’s lawyer went so far to suggest that Coldwater Indian Band doesn’t actually care about the health of its water source because they didn’t allow the company to do a water study on reserve. [LINK]
RE: “@pieglue Interesting arguments coming from #TransMountain on how as the proponent, and now a Crown Corporation - TM played a different role in re-visited phase three consultation. Alleges First Nations appellants failed to engage with TM in good faith, if at all. #cdnpoli” [LINK]
@gwitchinkris: Trans Mountain lawyer describing Ian Anderson (company CEO) contacting the Coldwater Chief by e-mail: “He was again reaching out for a ‘Chief to Chief’ discussion.” [LINK]
@justlynnp: OMG #TransMountain lawyer equating Crown Corp CEO Ian Anderson to Coldwater Chief! Says post approval talks could be "Chief to Chief"! So ignorant and disrespectful of Indigenous governance!!! #cdnpol #bcpoli [LINK]
***
On the last day of Federal Court of Appeal hearings to rescind the approval of the TMX expansion, TMX lawyer tries to flip the onus from TMX to adequately consult onto FN appellants who he says “failed to approach pipeline consultations in good faith.”
Canada commissioned reviews of Tsleil-Waututh expert reports on oil spills without telling the First Nation, the Federal Court of Appeal heard Monday, and only provided them after talks had wrapped up.
Scott Smith argued Monday at the Federal Court of Appeal that Canada had failed again in its duty to consult in a meaningful way, in part by intentionally withholding information associated with the Tsleil-Waututh’s concerns about the pipeline expansion project.
“My submission to you today is that Tsleil-Waututh was deprived of any opportunity to meaningfully dialogue,” said Smith in the Vancouver courtroom. “Either Canada was having a conversation with itself to resolve these issues, or it altered its scientists’ conclusions.”
Consultations had to be redone after the Federal Court of Appeal quashed the approval of the pipeline in August 2018. Prime Minister Justin Trudeau re-approved the Trans Mountain pipeline expansion in June.
The expansion project, now being built by Canada through a Crown corporation, would nearly triple the capacity of the existing pipeline, to carry crude oil and other petroleum products from near Edmonton to metro Vancouver.
The Tsleil-Waututh Nation (TWN), Coldwater Indian Band, Squamish Nation and others submitted a memorandum of fact and law to the court that says Canada commissioned reviews of Tsleil-Waututh expert reports on oil spills without telling the First Nation.
This fact was “withheld” during government consultations, the memo states, and Canada instead “took positions contrary to those of its own scientists,” only providing the reviews to the First Nation after talks had wrapped up.
By comparing the draft and final reviews, the First Nation said, it became obvious that “the conclusions within were altered to advocate for project re-approval.”
The reports were: an assessment of the risk of an oil spill during marine shipping by Simon Fraser University’s Thomas Gunton and Chris Joseph; an analysis of how an oil spill response might work, by environmental consulting firm Nuka Research; and an assessment of the behaviour of diluted bitumen during a marine oil spill, by environmental consultant Jeffrey Short.
Government officials asked Environment and Climate Change Canada to produce a peer review of those reports, where new science could be brought to bear on the topic.
The initial version of those peer reviews is dated March 12, 2019 but TWN says they only received them on June 22. By that time, Trudeau had already re-approved the pipeline expansion, five days earlier on June 18.
In between the March peer reviews and the June decision, TWN and Canada met on April 29, 2019, to discuss concerns linked to the expert reports that the First Nation had submitted.
TWN asked Canada if it had new studies or reviews on the project or on the reports it had filed — but was told by Canadian officials that “no such documents existed,” the court memo says.
Through cross examination, a senior bureaucrat at Natural Resources Canada confirmed that the peer reviews had been prepared by federal scientists before the April 29 meeting, and it was “possible” the request had been misunderstood.
Despite this, the First Nation also says it followed up on the April 29 meeting on May 17, asking again if there were any internal documents related to the expert reports and were told “there are no additional diluted bitumen studies to share at this time.”
Then, at a May 29 meeting, Canada finally revealed that the peer reviews existed, according to the court memo. It ultimately delivered the final versions on May 31 — hours after the final consultation meeting had just concluded that day.
Dec 16, 2019