Coldwater band applies to Supreme Court of Canada over Trans Mountain expansion

A B.C. First Nation is applying to argue its case at the Supreme Court of Canada for the protection of its drinking water in relation to the Trans Mountain pipeline expansion.

"This application is unlike any other proceeding concerning the Trans Mountain Pipeline Expansion Project," states the Coldwater application, filed on Friday.

"It is about ensuring that the sole source of drinking water within the Coldwater Indian Band's reserve is protected."

Coldwater, a band within the Nlaka'pamux Nation whose reserve is located about 100 kilometres southwest of Kamloops, B.C., has concerns about the approved route of the Trans Mountain expansion and the risks of moving diluted bitumen through a pipeline so close to its water supply.

Chief Lee Spahan said the decision to go ahead with the application to the Supreme Court happened in consultation with band members who agreed "we need to fight for our water," he said.

"You know, COVID-19 reminds us about the importance of being able to meet our own needs, such as food and water."

The existing Trans Mountain pipeline runs through the Coldwater reserve and there is a spill site on the reserve that has yet to be remediated. The expansion line is slated to be built just outside the reserve boundaries.

The aquifer the community is concerned about flows around and beneath the reserve.

Coldwater's application to the Supreme Court states, "where clean water exists on a reserve, it must be a top national priority to protect that water; and it is a matter of public importance for this Court to ensure that legal mechanisms that can give that protection are robustly applied."

Specifically, its application asks the Supreme Court to clarify the scope of Canada's duty to consult when it comes to on-reserve drinking water in comparison to asserted Aboriginal rights.

"At risk for Coldwater is not just an asserted Aboriginal right, but a defined Aboriginal interest (its reserve) and particularly the Aquifer within that reserve which provides the band's only source of drinking water," the application states.

Federal Court of Appeal ruled consultation was adequate

The Federal Court of Appeal ruled in February that the court would not interfere in Canada's re-approval of the Trans Mountain pipeline expansion and dismissed the appeals of Coldwater and several other B.C. First Nations.

The Federal Court also ruled that Coldwater was adequately consulted and accommodated in the federal government's revisited consultation process after the earlier quashing of the project approval. It found Canada addressed the band's routing concerns and had provided "more certainty that the risk to Coldwater's aquifer will be addressed."

The Federal Court of Appeal noted in its ruling that "Coldwater remains dissatisfied."

Coldwater's application says, if granted leave to make its case to the Supreme Court, the band will argue that the Federal Court of Appeal ruling did not hold Canada to the right standard regarding the level of consultation and accommodation owed to Coldwater when it comes to the pipeline and its drinking water.

Now, it will be up to the Supreme Court of Canada to decide if Coldwater will have the opportunity to make its case before the country's highest court. The Supreme Court chooses which cases it will consider.

According to the court's website, it receives up to 600 applications to appear before the court every year and accepts about 80 applications annually.

Spahan said his community remains hopeful that the court will grant them leave to make their case.

In an emailed statement, Natural Resources Canada said it's aware of Coldwater's application to the Supreme Court of Canada, as well as the applications from three other First Nations who were party to the same Federal Court of Appeal decision.

It said the federal government will file its replies according to the court's deadlines.

"We will continue to take the necessary steps to ensure this project moves forward in the right way, every step of the way, including by working with Indigenous peoples," said the statement.

Trans Mountain did not respond to a request for comment.

Hydrogeological study expected next month

In the meantime, a hydrogeological study of the aquifer beneath the reserve remains incomplete.

In its conditions of approval, the National Energy Board (now the Canada Energy Regulator) told Trans Mountain it needed to complete a hydrogeological study before it could build the expanded line through the Coldwater area.

Trans Mountain wrote to the Canada Energy Regulator in March that it plans to submit that study to the regulator in mid-May.

Trans Mountain is also expected to submit a feasibility study to the regulator in the coming days regarding the possibility of an alternative route for the pipeline.

Coldwater and Trans Mountain are expected to appear before the regulator in the coming months for a detailed route hearing where the aquifer and routing will be debated as well.