(The existing Trans Mountain pipeline crosses a river in Chilliwack, B.C., near Cheam First Nation. Lucy Scholey/APTN)
Canada must halt construction of the Trans Mountain pipeline expansion to address a “critical error” in the project and properly consult with Indigenous peoples, according to a Federal Court of Appeal decision released Thursday.
The 260-plus page decision, authored by Justice Eleanor Dawson, states the National Energy Board’s (NEB) process and findings were “so flawed” that it should not have formed the basis for the decision to green-light the project.
One glaring error, according to the court, was the NEB failed to include pipeline-related tanker traffic in its report, which could have “significant adverse effects” on Southern resident killer whales and their use by Indigenous peoples.
Further, the government failed in its legal duty to consult with Indigenous peoples. The report goes so far as to say that Canada “displayed a closed-mindedness when concerns were expressed about the (NEB’s) report and was reluctant to depart from the findings and recommendations of the Board.”
The Trans Mountain pipeline project is now in limbo, as the court has ordered the federal government to fix the tanker-traffic omission and re-do the consultation process with Indigenous peoples.
It remains unclear how long that would take.
But Finance Minister Bill Morneau said the government will not back down from the project, reiterating that it’s in the “national interest” and a “sound investment” for the country.
“Taken together, today’s decisions from the Federal Court of Appeal and Kinder Morgan shareholders are important next steps in getting this project built in the right way for the benefit of all Canadians,” he said in Toronto following the court decision.
“As we move ahead with the project and the purchase, our government remains committed to ensuring the project proceeds in a manner that protects the public interest. That means ensuring the highest level over governance – including environmental protection. It means upholding or commitments with Indigenous peoples and it means responsibly protecting Canada’s and Canadians’ investment.”
In 2016, the National Energy Board released a report recommending Canada approve the expansion of the Trans Mountain pipeline from Edmonton, Alta. to Burnaby, B.C.
Several First Nations, plus the City of Vancouver and the City of Burnaby, filed legal challenges against the pipeline project, asking the Federal Court of Appeal to scrap the NEB report and the government’s Order in Council approving the project. The expansion would triple the capacity of the Trans Mountain pipeline from near Edmonton to Burnaby, B.C., to 890,000 barrels a day. It would also increase the number of tankers in Burrard Inlet sevenfold.
The Squamish Nation cheered Thursday’s ruling as a recognition of Indigenous rights.
“This decision reinforces our belief that the Trans Mountain expansion project must not proceed and we tell the prime minister to start listening and put an end to this type of relationship. It is time for Prime Minister Trudeau to do the right thing,” the band said in a statement.
The Coldwater Indian Band, which asserts traditional territories in south-central B.C., said the pipeline route passes an aquifer that is the sole supply of drinking water for its main reserve
“This is a major victory for my community,” said Coldwater Chief Lee Spahan. “Thankfully, the court has stepped in where Canada has failed to protect and respect our rights and our water.”
Environmental groups and the cities of Vancouver and Burnaby also challenged the project in Federal Court last fall. They were supported by the province of British Columbia, which acted as an intervener.
Alberta was also an intervener and the province’s lawyer told the court Ottawa’s decision to approve the pipeline expansion was based on broad evidence that considered environmental, economic and Indigenous interests.
A total of eight challenges against the Order in Council were filed. Those were all accepted by the court.
Six applications challenged the NEB decision. Those were all dismissed on the grounds that the NEB is not subject to judicial review.
-With files from The Canadian Press