With its legal hurdles all but cleared, Trans Mountain’s challenges move to a different court — the street

The Trans Mountain Expansion Project pipe going in the ground west of Edmonton.Postmedia file photo

CALGARY – With the last legal challenge to the Trans Mountain pipeline expansion project all but eliminated, experts say opposition to the pipeline now will move from the courts to the streets.

“We always said we’d do what it takes to stop this pipeline,” said Rueben George, manager of the TWN Sacred Trust and a member of the Tsleil-Waututh First Nation, one of three First Nations that filed the legal challenge.

“We will take steps to make sure that Canada stays the way it is,” George said at a press conference that included chiefs and elected councillors from all the Indigenous groups involved in the case.

The Federal Court of Appeal Tuesday dismissed the case filed by Tsleil-Waututh First Nation, Squamish First Nation and Coldwater Indian Band, who argued the federal government failed to properly consult on the $10 billion oil pipeline which would pass through their territories.

It was the second such appeal by the opposed Indigenous groups of the pipeline. But where they won their first appeal in August 2018, this time the appeals court found the government had consulted properly.

Those Indigenous groups and aligned environmentalists opposed to the pipeline reiterated Tuesday that they’re committed to blocking the project. George said the decision would be appealed to the Supreme Court.

“We are deeply disappointed with the decision today but, as stated earlier, this is but one step available to us,” said Dustin Rivers, a spokesperson for and elected member of the Squamish Nation Council.

“B.C. has a long history of civil disobedience,” he added.

First Nations have 60 days to file an appeal.

We are deeply disappointed with the decision today but, as stated earlier, this is but one step available to us

Dustin Rivers, Squamish Nation Council

It’s unclear whether the Supreme Court will be willing to hear an appeal given the sharp wording of the decision, which was rendered unanimously and ordered the Indigenous groups to pay compensation to the defendants — the federal government, Canada Energy Regulator as well as Alberta and Saskatchewan.

Lawyers, pipeline executives and professors say they believe the legal challenges before the Trans Mountain pipeline project that runs between Edmonton and Vancouver are largely over, but most expect opposition to now take the form of on-the-ground protests.

Indeed, environmental organizations on the West Coast said they would continue to oppose the pipeline. Stand.earth said it had 27,000 pledges from people who would do “whatever it takes” to stop the pipeline.

“As long as Prime Minister Justin Trudeau tries to build the Trans Mountain pipeline, we will continue to fight,” Stand.earth international program director Tzeporah Berman said in a release.

Despite the threat of delays, Tuesday’s court decision is “good news for workers,” said Progressive Contractors Association of Canada president Paul de Jong.

He added: “There could be more opposition in terms of physical resistance along the pipeline right of way (but) this project has taken far too long to move to construction.”

Construction work in Alberta and at the Westridge Marine Terminal in Burnaby, B.C. has been underway for months.

Public opinion in the Lower Mainland is divided over the project, said Simon Fraser University professor Shahin Dashtgard, who passes by the construction on the oil terminal on Burnaby Mountain every day.

“There are a substantial number of people that are either OK with it, or don’t have an opinion,” Dashtgard said, though he noted that polling consistently shows that between 40 per cent and 60 per cent of the population in the Vancouver region are opposed to the project and this could provide “a source of people” to protest the project.

Tuesday’s Appeals Court decision and the Supreme Court of Canada’s unanimous dismissal last month of B.C.’s case against the pipeline is likely to discourage civil disobedience to the project, he said.

“We have a country that believes in the rule of law and this was taken to the highest courts,” Dashtgard said.

A ramp-up in construction on the project is expected later this year.

Trans Mountain Corp. filed an updated construction schedule on Monday with the Canada Energy Regulator that showed the Crown corporation would begin “clearing and pipeline construction” in the Kamloops, B.C. area in March. The company has already been putting pipe in the ground in Alberta, and has been welding those pipes together since the end of 2019.

In an emailed statement, the company said it had hired 2,200 people for the project by the end of the third quarter of 2019 and would provide updated employment numbers in the coming weeks.

Overall, Tuesday’s decision provides a greater sense of optimism that the Trans Mountain project will be completed despite continued opposition and expectations of protests.

“It’s hard to predict what kind of civil disobedience could happen,” Canadian Energy Pipeline Association president and CEO Chris Bloomer said in an interview, adding that the court decision made clear that “we can’t keep having endless interventions.”

Tuesday’s decision does dismiss the idea that all of the concerns of Indigenous communities need to be resolved before a project can be approved.

“If we accepted those submissions, as a practical matter there would be no end to consultation, the project would never be approved, and the applicants would have a de facto veto right over it,” the decision reads.

Still, there is a specific area in which the appeals court decision might allow for a successful appeal to the Supreme Court, said University of Calgary assistant law professor David Wright.

“The court makes comments on the interplay between the duty to consult and the infringement analysis,” Wright said, adding that “there’s a lack of clarity in the law” between those two legal principles.

“This case is interesting because the court is speaking to that foggy area directly. It’s too early to say how good of a job they’ve done,” Wright said, adding that’s one area where the Supreme Court might be willing to listen to an appeal, even though the appeals court ruling was unanimous. SOURCE

Canada ‘altered’ scientific reviews of oil spill research, court hears

In this photo dated Dec. 5, 2019, a worker in Alberta takes measurements for the Trans Mountain pipeline expansion. Trans Mountain Photo / Facebook

Canada “altered” scientific reviews of oil spill research and “suppressed” information until after consultations over the Trans Mountain pipeline were over, says a lawyer for the Tsleil-Waututh Nation.

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.”

Environment and Climate Change Minister Jonathan Wilkinson’s press secretary Sabrina Kim could not immediately offer comment when reached by National Observer.

Several B.C. First Nations are in court this week to argue against the Trans Mountain pipeline expansion. The court is focusing on the federal government’s conduct after it re-launched consultations last year and through this spring.

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 export reports were submitted by TWN to the government during a reconsideration hearing, held by what was then the National Energy Board in late 2018.

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.

Bitumen is a dense, viscous oilsands product that must be combined with chemicals in order to get it to flow smoothly along a pipeline. The resulting product is called diluted bitumen, or dilbit for 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.

“The duty to consult imposes upon Canada a ‘positive obligation’ to ensure it provides TWN with all necessary information ‘in a timely way’ so TWN had a meaningful opportunity to express its interests and concerns,” reads the memo.

“Canada failed to discharge that duty here.”

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.

“Canada suppressed and altered the peer reviews in relation to marine spills,” the memo states.

TWN says the peer reviews showed that government scientists “substantially agreed” on a central issue raised in the report by Short — how long it would take for diluted bitumen that had been released in an oil spill to submerge into the ocean, making it much harder to clean up.

Short had said that spilled dilbit in the Fraser River during the spring thaw could submerge within one to two days. Government scientists said dilbit in fresh water was at risk to submerge within five to 10 days.

Yet Canada maintained the view during the April 29 meeting that “diluted bitumen submergence can take approximately two to three weeks,” a much longer timeframe, the memo stated.

“How are we meaningfully dialoguing?” Smith asked the court on Monday. “Five to 10 days is not two to three weeks.” SOURCE

Trans Mountain pipeline expansion approval ‘unlawful,’ First Nations argue as new court challenge begins

Federal Court of Appeal hears arguments about inadequacy of government’s consultation process

Khelsilem of the Squamish Nation holds a news conference with four British Columbia First Nations groups challenging the re-approval of the Trans Mountain pipeline in Vancouver on Monday. (Ben Nelms/CBC)

Several B.C. First Nations are squaring off against the federal government in the Federal Court of Appeal in Vancouver this week, arguing that it failed to conduct meaningful consultations with them about the Trans Mountain pipeline expansion and that the project should be cancelled.

The case is similar to the previous Federal Court of Appeal case that quashed the approval of the pipeline expansion in August 2018 except it is focused on the specific window of time when the federal government revisited its duty to consult with First Nations before approving the project once again in June of this year.

“Canada has repeated many of the errors that led to the original quashing of the pipeline, and in some ways, consultation was worse than the first time around,” said Leah George-Wilson, elected chief of the Tsleil-Waututh Nation at a news conference on Monday.

“Today, we argue that the federal government’s approval of the pipeline is unlawful and must be quashed. Our experience is that consultation fell well short of the mark.” 

The Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band and a collective of Stó:lō bands will be making arguments about why they believe the renewed consultation efforts fell short in each of their specific communities.

The Crown-corporation-owned expansion project would twin an existing 1,150-kilometre pipeline that extends from Edmonton to Burnaby, B.C., nearly tripling its capacity to move oil from Alberta to coastal B.C., and then to markets in Asia. The cost has been estimated to be between $7.4 billion and $9.3 billion.

Tsleil-Waututh says Ottawa ‘unilaterally focused’ on re-approving project

Tsleil-Waututh’s legal team was first to present arguments in court on Monday morning, in a packed courtroom with more than two dozen lawyers, community members and media.

Scott Smith, one of the litigators on Tsleil-Waututh’s legal team, said Ottawa refused to budge on issues of concern to the First Nation, “or change its position because it was unilaterally focused on re-approving this project.”

Chief Leah George-Wilson of the Tsleil-Waututh Nation speaks at a news conference alongside other First Nations groups that are challenging the re-approval of the Trans Mountain pipeline. (Ben Nelms/CBC)

Tsleil-Waututh’s main concerns about an expanded Trans Mountain pipeline include an increase in tanker traffic in Burrard Inlet; the effect a potential spill of diluted bitumen could have in the inlet and the Fraser River estuary; and the capacity to recover bitumen from such a spill.

The First Nation is also concerned about the impact of increased marine traffic on the southern resident killer whales and argued in court that the federal government prematurely re-approved the expansion before conducting further research necessary to assess that impact.

Prior consultation fell short, 2018 court ruling found

The federal government’s duty to consult stems from Section 35 of the Constitution, which recognizes Aboriginal and treaty rights. Over decades, court rulings have been defining what Indigenous rights look like and under what circumstances the government can make a decision that infringes on those rights.

The degree of consultation required and the accommodations that may need to be considered depend on the project under consideration and the level of potential impacts on a specific community.

Khelsilem, elected councillor and spokesperson for the Squamish Nation, said at the news conference the court case is about fighting the “substandard” level of consultation his nation saw from the federal government.

“The Squamish nation is committed to building a community, a territory, that is clean and that is prosperous. Not just for our people but all the people that now live in our territory,” he said.

“An expanded pipeline export facility within our territory and within this part of the world does not make sense given the risks that it would pose and the lack of meaningful respect for the rights of the Squamish people.”

The initial Federal Court of Appeal ruling in August 2018 stated that some of the federal government consultation work was adequate but found “at the last stage of the consultation process prior to the decision of the Governor in Council … Canada’s efforts fell well short of the mark set by the Supreme Court of Canada.”

Workers survey around pipe to start of right-of-way construction for the Trans Mountain Expansion Project, in Acheson, Alta., on Dec. 3. The expansion project would twin an existing 1,150-kilometre pipeline, nearly tripling its capacity to move oil from Alberta to coastal B.C., and then to markets in Asia. (Jason Franson/The Canadian Press)

As a result of this ruling, the federal government was forced to revisit that last stage of consultation and tasked retired Supreme Court justice Frank Iacobucci with overseeing that work.

Over the next three days, several parties will be making arguments to the court: four First Nations groups, the federal government, Trans Mountain and several interveners. Proceedings will be livestreamed via the court website.

The case will focus on the work that happened under Iacobucci between Aug. 30, 2018, and June 18, 2019.

Upper Nicola and Stk’emlupsemc te Secwepemc, two of the six nations initially approved to proceed with arguments before the court, have since dropped out after signing agreements with Trans Mountain.

How Trans Mountain’s capacity compares against that of other pipeline projects.

Why Trudeau’s Trans Mountain Dreams May Trickle Out in Coldwater

IN DEPTH: A tiny Indigenous band’s epic pipeline fight takes its biggest turn.

‘Nobody respects us,’ says Coldwater Chief Lee Spahan, his band having filed a new challenge to the TMX project he says has long trespassed his people’s territory. Photo by Mychaylo Prystupa.

On the Friday evening of June 7, Chief Lee Spahan of the Coldwater Indian Band received an email from Mitchell Taylor, Q.C., head of a federal consultation team acting under the auspices of Canada’s Department of Justice.

The email contained an offer, and an assertion.

The offer was that the government would take a new approach to deciding where the Trans Mountain Expansion Project (TMX) pipeline would be routed in relation to the Coldwater reserve, whose people are determined to protect the freshwater aquifer upon which they depend.

That issue had remained wholly unresolved after four years of negotiations, court judgments in favour of the Coldwater’s position, countless hours of consultations, and many hundreds of thousands of dollars spent on futile wrangling.

The stakes were high for the Coldwater, for the TMX, and for Prime Minister Justin Trudeau, who had placed a heavy political bet on using taxpayer’s money to buy the pipeline and guaranteeing its expansion would happen. Last year, the Federal Court of Appeal threw out TMX’s permit to proceed, demanding more rounds of consultation with the Coldwater and other Indigenous nations in the path of the pipeline.

Now, with the new offer came this assertion: “Canada believes this commitment satisfies what we understand to be your key concerns.”

But Taylor’s offer did not begin to satisfy the key concerns of the Coldwater. In fact, in their view, it only put their precious aquifer further at risk, and once again failed to seriously evaluate a solution they’d been proposing for years.

The band was asked to respond to the government’s offer by June 12 — in just three business days. What had been a plodding process suddenly was moving fast. In fact, just 11 days after the emailed offer arrived in Spahan’s inbox, the federal government would announce (again) its approval of TMX, claiming in the process that it had done everything required of it to consult and accommodate Indigenous communities like Coldwater.

On Sept. 11, Trudeau asked the Governor General to dissolve the current parliament. That day he flew to Vancouver to start his bid for re-election with a speech that did not mention Canada’s Indigenous peoples.

The Coldwater Indian Band were busy too. That same day, they filed a Notice of Application in the Federal Court of Appeal that may hand pipeline opponents the keys to locking the project shut for good — or least spannering the works for months, if not years. MORE


Canada rejects scientists’ emergency call to protect endangered trout on Trans Mountain’s path

Chief Lee Spahan of Coldwater Indian Band celebrating on Aug. 30, 2018, when the Supreme Court overturned the Liberals’ first TMX approval. Photo by Michael Ruffolo

The decision — described by one First Nations chief, Lee Spahan from the Coldwater Indian Band, as “disrespectful” — comes more than a year after scientists first recommended that Canada should list both the Thompson and Chilcotin steelhead trout under the Species At Risk Act.

The federal legislation allows federal cabinet ministers to make a final decision in response to the scientific advice.

In this case, it would have required stricter protections of critical habitat that could challenge the potentially adverse effects of construction or an oil spill from the west coast Trans Mountain project.

In a July 11 press release, the Department of Fisheries and Oceans (DFO) said “the Government of Canada has determined that an emergency listing would produce suboptimal ecological, social and economic outcomes relative to a comprehensive, long-term collaborative action plan with British Columbia.”

Chief Spahan of Coldwater Indian Band disagreed, calling the decision “disappointing,” “frustrating” and “disrespectful.”

Feds say they can undertake better Steelhead protection without the Species At Risk Act, but Chief Lee Spahan says decision is “disappointing” and “frustrating.” #cdnpoli #bcpoli

“They [DFO] are mismanaging our fish right into extinction,” he said. “They have to open their eyes and start protecting the water and the fish because without water, the fish can’t survive. MORE

First Nations renew court battle to stop Trudeau and Trans Mountain

Members of Tsleil-Waututh Nation gather around, with lawyer Merle Alexander, Tsleil-Waututh Chief Leah George-Wilson and Skeetchestn Indian Band Kukpi7 Ron Ignace at centre front row in Vancouver, B.C., on July 9, 2019. Photo by Stephanie Wood

First Nations have taken their first step to bring the federal government back to court over its approval of the Trans Mountain expansion project.

Six First Nations, including Squamish Nation, Tsleil-Waututh Nation and Coldwater Indian Band, announced today they have officially petitioned the Federal Court of Appeal to review Prime Minister Justin Trudeau’s second approval of the pipeline.

Chief Leah George-Wilson of Tsleil-Waututh Nation said Canada was “not responsive” to concerns that came up during the consultation process, including those relating to the risks and costs of an oil spill, the impacts on southern resident killer whales and encroaching on Indigenous rights and title.

“Tsleil-Waututh participated in the consultation in good faith, again. But it was clear that Canada had already made up their mind as the owners of the project,” she said. “We have no choice but to appeal again, and we expect the same result: that the approval will be overturned.”

The nation will also argue that the government’s $4.5-billion purchase of the west coast pipeline system created a conflict of interest.

“Canada is biased. The federal government is in a conflict of interest as the owner, the regulator and enforcer, as well as the fiduciary for First Nations,” George-Wilson said.

Under Canada’s Constitution, federal government has a legal duty to consult First Nations on decisions that could affect their rights or way of life. But the Trudeau government failed to do this the last time it tried to approve the pipeline in November 2016.

As National Observer reported in April 2018, government insiders say senior public servants privately ordered them to find a way to approve the project before Trudeau announced his decision, despite telling Indigenous leaders the government was still consulting them. MORE