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

Trudeau’s paradoxical definition of Indigenous consent

The federal government’s skewed view of Indigenous consent, and its apparent conflict of interest on the pipeline, could pose a legal problem.

Image result for policy options: Trudeau’s paradoxical definition of Indigenous consent
Photo: Indigenous drummers perform a drum circle prior to a demonstration against the approval of the Trans Mountain pipeline, in Victoria on June 22, 2019. THE CANADIAN PRESS/Dirk Meissner

he latest cabinet approval of the Trans Mountain pipeline came less than a day after the federal government declared a climate emergency. While the irony was a dream for satirists, it wasn’t the biggest contradiction of the day. Instead, it was Prime Minister Justin Trudeau’s bizarre definition of free, prior, and informed consent (FPIC) with regard to projects that will impact Indigenous land and rights: “[FPIC] is what we engaged in doing with Indigenous communities over the past number of months. It is engaging, looking with them, listening to the issues they have and responding meaningfully to the concerns they have wherever possible.”

By Trudeau’s definition, consent is: listening to issues, responding to concerns wherever possible, and then forging ahead. As Indigenous lawyer and scholar Pam Palmater pointed out, imagine if that definition of consent was applied in the context of sexual relations?

The prime minister’s comments largely went unnoticed in the mainstream media, but his government’s skewed understanding of FPIC and half-hearted attempts at consultations with Indigenous communities remain the core reason it will be unable to move the project forward. Moreover, Ottawa’s purchase of the pipeline created an inherent conflict of interest as it purported to sit down for meaningful consultations.

“Listening to the issues”

So, what exactly was the government “engaged in doing” with Indigenous communities since last August, when the Federal Court of Appeal found that “Canada did not fulfil its duty to consult” on the pipeline and quashed the National Energy Board’s approval of it?

Many of the First Nations that had appealed to the court expressed their dissatisfaction with the renewed Stage III consultation process that the court had mandated.

The Squamish First Nation said it had been assured there were no time limits for the consultations, only to discover that cabinet did have an end date in mind. Khelsilem, a Squamish Nation spokesperson, told a news conference that they had been sent documents for feedback after May 22, the federal government’s self-imposed deadline for comments.

“What we experienced was a shallow attempt at consultation that resulted in a failure to address our concerns,” said Khelsilem. “The failure to meaningfully engage with rights holders means this government is either not serious about building this pipeline or not serious about respecting Indigenous rights.”

Chief Lee Spahan of Coldwater Indian Band said, “The meaningful dialogue that was supposed to happen never happened.” A study of the community’s aquifer had not yet occurred, and an existing pipeline spill has yet to be remediated.

Chief Leah George-Wilson of the Tsleil-Waututh Nation said that consultation once again fell well below the mark set by the Supreme Court of Canada in a number of key decisions, including Tsilhqot’in. This constitutional obligation of the Crown’s was re-emphasized in the Federal Court of Appeal ruling. George-Wilson also noted that the federal government was in a conflict of interest – that its multiple hats as proponent, decision-maker, enforcer of laws and fiduciary to First Nations and all Canadians made it impossible to make an open-minded, unbiased decision.