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

First Nations Vow to Fight on after Trans Mountain Defeat

Federal court rejects argument consultation was inadequate. ‘Reconciliation stopped today,’ says representative.

COVER.TMX-First-Nations-Court.jpg

The $7.4-billion Trans Mountain pipeline expansion project is already under construction. The expansion has been strongly opposed by the Indigenous governments challenging it in court. Photo by Jason Franson, the Canadian Press.

The Federal Court of Appeal has dismissed an application from First Nations seeking to overturn the government’s approval of the Trans Mountain pipeline expansion because they had not been adequately consulted.

While pipeline supporters applauded the court’s decision, opponents — including representatives of the First Nations involved in the challenge — promised the fight will continue both inside and outside the legal system.

“The applicants’ submissions are essentially that the Project cannot be approved until all of their concerns are resolved to their satisfaction,” Justices Marc Noël, J.D. Denis Pelletier and J.B. Laskin wrote in their unanimous reasons for judgment released today.

“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,” it said.

The application was filed by the Coldwater Indian Band, Squamish Nation and Tsleil-Waututh Nation along with the Aitchelitz, Skowkale, Shxwhá:y Village, Soowahlie, Squiala First Nation, Tzeachten and Yakweakwioose.

The respondents were the Canadian attorney general, Trans Mountain Pipeline ULC and Trans Mountain Corporation. The attorneys general for Alberta and Saskatchewan intervened, as did the Canadian Energy Regulator (formerly known as the National Energy Board).

The $7.4-billion project, already under construction, will twin an existing 1,150-kilometre pipeline from near Edmonton to Burnaby, tripling capacity to 890,000 barrels per day.

The expansion has been strongly opposed by the Indigenous governments challenging it in court, as well as by local governments, environmental groups and individuals. More than 200 people have been arrested protesting construction in the Lower Mainland, including former Green Party of Canada leader Elizabeth May and now Vancouver Mayor Kennedy Stewart, cases that have led to charges in many cases and proceeded through the court system.

In a 2018 ruling, the court had found that the federal government’s original decision to approve the expansion of the pipeline, which it now owns after buying it from Kinder Morgan for $4.5 billion, was based on an “impermissibly under-inclusive” environmental assessment and a failure by the Crown to fulfil its duty to consult with Indigenous peoples.

Today’s decision found the consultation process launched after that ruling has been sufficient, justifying the subsequent federal government approval.

“Contrary to what the applicants assert, this was anything but a rubber-stamping exercise,” the justices ruled. “The end result was not a ratification of the earlier approval, but an approval with amended conditions flowing directly from the renewed consultation.”

“It is true that the applicants are of the view that their concerns have not been fully met, but to insist on that happening is to impose a standard of perfection, a standard not required by law.”

Trans Mountain Corporation welcomed the ruling. “After many years of consultation and review we are pleased to be able to continue moving forward and building the Project in respect of communities, and for the benefit of Canadians,” President and CEO Ian Anderson said in an emailed statement.

“The Government of Canada’s additional Indigenous consultation represented an immense undertaking by many parties. The Government was committed to a specific and focused dialogue with affected Indigenous communities to ensure Canada, and the Company heard their concerns and responded.”

Alberta Premier Jason Kenney tweeted “Another win on the #TMX pipeline for Alberta! Pleased to see this unanimous decision by the Federal Court of Appeal to reject this challenge. Now let’s get it built.”

Representatives of the First Nations involved in the case expressed deep disappointment with the ruling during a news conference in Vancouver but said the fight will continue.

“Disappointing as it is, it’s one step,” said Tsleil-Waututh elected Chief Leah George-Wilson. “We have far longer to go in this journey.”

We’ll continue to fight to enforce our jurisdiction within our territories,” said Khelsilem, a Squamish Nation elected councillor, stressing the continued right to self-determination on unceded lands.

While there are legal options to continue the fight, he said, it’s worth remembering B.C.’s long history of civil disobedience in support of environmental causes. “There are a lot of people who are willing to do a lot to defend our coast and defend our communities.”

The applicants have 60 days to review the decision and decide whether to appeal it to the Supreme Court of Canada.

Several speakers pointed out that the federal government’s drive to complete the pipeline expansion is at odds with its stated goals of reconciliation with Indigenous people and action on the climate crisis. The pipeline will carry bitumen from Alberta’s oil sands to be exported by tanker from Burnaby.

“Reconciliation stopped today,” said Rueben George, a spokesperson for the Sacred Trust Initiative of the Tsleil-Waututh Nation. “This government is incapable of making sound decisions for our future generations.”

University of Victoria law professor Chris Tollefson said the appeal court’s decision was unsurprising and the matter is almost certainly headed to the Supreme Court of Canada.

The original decision requiring additional consultations “made it clear there were some fundamental problems with the process and sent it back for those to be fixed,” said Tollefson, who represented BC Nature through the National Energy Board process.

“The new process was not much better than the old one. It still left many of the same questions and problems on the table,” he said. “Instead of opening the courthouse door and hearing those arguments, what the court did the second time was to severely constrain which arguments it would hear and from whom they would hear them.”

“What we have is a judicial process that is very much open to criticism in terms of giving parties with a very legitimate stake, who have worked in this process, they’ve been effectively denied their ability to make their case.”

Today’s decision answers a small number of questions for a narrow number of litigants, meaning the Supreme Court will eventually have to rule on all the still unanswered questions, he said.

“It’s not the end of the story.”

Today’s ruling follows a unanimous January Supreme Court of Canada decision that found British Columbia lacked the jurisdiction to regulate the flow of heavy oil across the province. SOURCE

 

Federal Court to decide fate of Trans Mountain expansion

Judges to rule whether Ottawa did enough to consult with Indigenous peoples before approving project

Pipe for the Trans Mountain Pipeline is unloaded in Edson, Alta., on June 18, 2019. Four First Nations filed court challenges last fall asking justices to overturn approval of the project. (Jason Franson/The Canadian Press)

The Federal Court of Appeal will decide on Tuesday whether the Trans Mountain expansion project lives or dies when it rules on an appeal from Indigenous communities who have long opposed its construction.

Four First Nations from B.C. filed court challenges last fall asking justices to overturn the federal cabinet’s second approval of the project.

The court will issue its decision at 1 p.m. ET.

While construction has already begun on key segments of the expansion, a ruling that sides with the Indigenous applicants would effectively halt all of that work. The court could order the federal government do more to bring Indigenous peoples onside with the $7.4 billion project, among other possible rulings.

The Indigenous communities challenging the project maintain that the Liberal government’s consultation efforts, led by former Supreme Court justice Frank Iacobucci and dozens of Crown consultants, were insufficient because they did not adequately consider their concerns about the risk of an oil spill.

The Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band and a coalition of small First Nations have said the constitutionally necessary consultations were akin to “window-dressing, box-ticking and nice-sounding words.”

The government has said the project, which will twin an existing line and carry nearly a million barrels of oil a day to the B.C. coast for export, is in the national interest and must be built to get Canadian oil to markets overseas.

Ottawa met with more than 117 communities along the project’s route and imposed conditions on the project — based on its consultations — to mitigate environmental risks and assuage worried Indigenous communities.

The Trans Mountain expansion project went through a years-long federal review by the National Energy Board (NEB) and the Canadian Environmental Assessment Agency (CEAA) and has been approved by the federal Liberal cabinet — twice.

Prime Minister Justin Trudeau has said the project is needed because it would help deliver Canadian oil to tidewater for shipment to lucrative markets in Asia, reducing price pressures on Alberta oil producers.

“To the hard-working men and women in natural resource sector — I know you’re facing tough times. We hear you. We’re going to keep working hard to get resources to market,” he said at a recent news conference.

The Federal Court of Appeal has already quashed cabinet approvals once before. In a stunning ruling in August 2018, judges nullified construction permits citing inadequate Indigenous consultation.

Justice Eleanor Dawson, who wrote the decision, did not mince words in her ruling, describing the Trudeau government’s first attempt at consultation a “failure” — and using that word well over 100 times in a 272-page decision.

Dawson called previous federal consultants glorified “note-takers” who recorded concerns without acting.

The previous Crown consultation team believed, erroneously, that it could not add more conditions to the project than those the NEB already imposed.

This time, Iacobucci and his team were empowered to turn feedback into action.

The project has already cleared one major legal hurdle at the Supreme Court. Last month, the top court dismissed B.C.’s appeal of a lower court decision that quashed provincial legislation designed to block the project.

B.C. Premier John Horgan has sought to stop construction of the expansion. His NDP government had drafted amendments to provincial environmental law to all but ban interprovincial shipments of heavy oil — bitumen and diluted bitumen — and other “hazardous substances” through pipelines, including the Crown-owned Trans Mountain.

The amendments would have required companies transporting these substances through B.C. to first obtain provincial permits.

The top court ruled that sort of legislation is unconstitutional because it sought to regulate a project that is clearly under the jurisdiction of the federal government. 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.

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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