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.

Trans Mountain pipeline saga looks set to drag into 2022

Construction may have resumed and Trudeau has promised to see TMX through, but it’s the legal delays that look set to hold everything back

With the Federal Court of Appeal set to hold its second hearing on approval of the Trans Mountain Pipeline in December, it may seem that the end is near for the long-running saga.

But the perception could well be illusory. While Prime Minister Justin Trudeau’s promise that his minority government will see the pipeline through remains fraught with political difficulties, it is the inexorable delays in the legal process that may present the greatest obstacle to the project’s fruition.

In August 2018, the Federal Court of Appeal (FCA) overturned the cabinet’s November 2016 order-in-council approving the pipeline, which was based on recommendations made by the National Energy Board (now the Canadian Energy Regulator) some six months earlier.

While the court found that Canada had acted in good faith and selected an appropriate consultation framework, the duty to consult had not been adequately discharged and “fell well short of the mark” by failing “to engage, dialogue meaningfully and grapple with the real concern of the Indigenous applicants so as to explore possible accommodation of (their) concerns.” SOURCE

Consultation or consent?

What is adequate consultation? When has consent been given?

You may have heard the news that the Federal Court of Appeal will soon hear six legal challenges to the approval of the Trans Mountain pipeline project. The challenges will once again focus on the “consultation” with Indigenous peoples directly impacted by this project.

Before taking power in 2015, Justin Trudeau promised his government would not only consult First Nations, but would obtain consent from communities before projects like this one could proceed.

There has never been clear consent for the Trans Mountain pipeline.

The Federal Court has already ruled once that public consultation for this 1,150 km pipeline expansion, which would take bitumen from the tar sands in Alberta to British Columbia for export, was inadequate, and it overturned the original approval for the project.

The federal government, now owner of the pipeline thanks to the use of more than $4.5 billion of public money (with another $9.3 billion expected to be spent on construction costs), started a second consultation process in June. But when the government announced it was approving the pipeline project again, Indigenous peoples argued that the outcome of that consultation was predetermined. They say the government, as owner of the pipeline, has a financial interest that overshadows the public interest.

We should all ask: what is adequate consultation? When has consent been given? Should consultation that simply gathers the feedback people provide be accepted, or does the government have a responsibility to act on when impacted Indigenous nations say no?

These legal appeals are examples of the lengths Indigenous peoples need to go to prove their rights are being trampled and how difficult it is to hold the government and corporations accountable to the law. On the flip side, land and water defenders are being unjustly jailed and fined for simply voicing their dissent. This is a double standard of law enforcement that is difficult to reconcile.

The court ordered the legal challenges be heard quickly and rulings are expected within months.

Thanks to the generous support of people like you, the Council of Canadians is working in solidarity with Indigenous peoples and concerned people and communities to stop this pipeline.


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