Federal Court of Appeal dismisses First Nations’ Trans Mountain pipeline expansion challenge

In a unanimous decision Tuesday, the Federal Court of Appeal has dismissed a challenge to the Trans Mountain pipeline expansion project by several First Nations.

“Government of Canada has adequately fulfilled its duty to consult with Indigenous peoples,” the court said in its ruling.

“The court focused on the reasonableness of Cabinet’s decision to approve the Project a second time, specifically Cabinet’s conclusion that the Government of Canada had remedied the flaws in the consultation earlier identified by this Court and had engaged in adequate and meaningful consultation with Indigenous peoples.”

The Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band and a coalition of seven Stó:lō villages filed court challenges after the federal government approved the project a second time last June.

A court hearing in December focused on the government’s consultation with First Nations between August 2018 and June 2019.

The consultation took place after the Court of Appeal struck down the first project approval in August 2018 in part because of insufficient dialogue with Indigenous groups.

At the hearing last month, the coalition argued that the government came into the consultations having predetermined the outcome.

The federal government responded that consultations were meaningful, saying that instead of just listening and recording the concerns it heard, it also incorporated them into broader programs to protect the environment.

“The Court found this to be a reasonable conclusion based on, among other things, the evidence in the record, the law concerning duty to consult, the legislation governing project approvals and the justification offered by Cabinet for its approval,” the court said.

“The Court found that the decision approving the Project was not a ratification of the earlier approval, but an approval with amended conditions flowing directly from the renewed consultation.”

The project is to triple the capacity of the existing Trans Mountain pipeline to carry diluted bitumen and refined products from Alberta’s oilsands to a shipping terminal in Burnaby, B.C.

Chief Lee Spahan of the Coldwater Indian Band said in a statement an appeal to the Supreme Court is under consideration.

He also said his band must still be consulted on the route the expansion will take, with the approved route passing an aquifer that is the only source of drinking water for 320 people living on the main Coldwater reserve.

The band wants the route moved away from the aquifer.

The Union of British Columbia Indian Chiefs hosted a news conference in Vancouver to react to the ruling.

“UBCIC strongly disagrees with the decision released today and continues to stand by the Indigenous Nations who put forth their legal challenges to defend their right to free, prior and informed consent,” said UBCIC Grand Chief Stewart Phillip in a statement. “The court’s ruling rests upon discriminatory and hypocritical foundations; their rejection of the Nations’ appeal rests on the claim that when it comes to a project of public interests, ‘the law does not require the interests of Indigenous peoples prevail,’ and that Indigenous peoples cannot veto projects such as the TMX.

“Let me make clear that Indigenous peoples are not seeking a veto. We are seeking to have our human rights upheld.”

Prime Minister Justin Trudeau’s government purchased the pipeline and related infrastructure for $4.5 billion in 2018 and construction of the expansion is underway.

“Today’s ruling affirms that the Government of Canada’s renewed consultations with Indigenous communities addressed the issues identified by the Federal Court of Appeal in its August 2018 decision,” said Natural Resources Minister Seamus O’Regan in a statement released after the decision was announced. “This was a responsibility the Government of Canada took very seriously, and it is work the government did in partnership with Indigenous communities.

“The result was the most comprehensive consultation ever undertaken for a major project in Canada’s history.”

The four First Nations involved now have 60 days to appeal to the Supreme Court of Canada.

More to come….

-with files from The Canadian Press