In a unanimous decision, the federal court of appeal said the government failed to consider the concerns of some First Nations

This article is more than 1 year old

This article is more than 1 year old

A Canadian court has overturned Ottawa’s approval of a hotly-contested pipeline project – throwing plans to nearly triple the flow of Alberta’s landlocked bitumen to the west coast into limbo – in a ruling hailed by environmentalists and Indigenous groups.

In a unanimous decision released on Thursday, the federal court of appeal said the Liberal government – led by Justin Trudeau – failed to adequately consider the concerns of some First Nations regarding the Trans Mountain expansion project.

The ruling also found that the country’s energy regulator, the National Energy Board, did not properly consider the impact of increased tanker traffic due to the project.

'Our land is our home': Canadians build tiny homes in bid to thwart pipeline Read more

The scheme had been a crucial test for Trudeau and his government, who swept into office in 2015 on promises of striking a balance between economic growth, environmental concerns and repairing the country’s fraught relationship with Indigenous peoples.

While the project could allow Alberta to get its bitumen to markets in Asia and reduce its reliance on the US market, there has been opposition over the potential for oil spills and the impact that a dramatic rise in tanker traffic could have on the region’s southern resident killer whales, a population already on the knife edge of extinction.

The court ruling will halt construction of the 1,150km project, spearheaded by Texas-based Kinder Morgan, until the energy regulator and government can show they have complied with the court’s demands – a process that could take years.

Several Indigenous groups and environmentalists applauded the ruling, which emerged from a legal challenge backed by more than a dozen groups, including the city of Vancouver, several First Nations and environmental organisations.

“Thankfully, the court has stepped in where Canada has failed to protect and respect our rights and our water,” Coldwater Indian Band chief Lee Spahan said in a statement.

Recent months have seen increased Indigenous-led protests against the project, with thousands of people demonstrating in the streets. Hundreds – including two federal MPs – have been arrested for blocking the entrance of a facility belonging to Trans Mountain.

The federal government, who earlier this year announced it would spend $4.5bn to purchase the pipeline in a bid to push the expansion forward, said it was reviewing the decision.

“We are absolutely committed to moving forward with this project,” Bill Morneau, Canada’s finance minister, told reporters on Thursday, saying that the government had yet to decide whether it would appeal.

The court’s decision was announced minutes before Kinder Morgan shareholders voted to approve the sale of the pipeline to the Canadian government. Morneau defended the purchase, describing it as a “sound investment”, given that any private sector company would have found it difficult to bear the risks involved with the project.

“We believe this project is in the national interest, we believe that it’s critically important for our economy, critically important to allow us … to get to international markets,” said Morneau.

Thursday’s ruling puts the government in a difficult position, said Stewart Phillip, grand chief of the Union of British Columbia Indian Chiefs. “They actually bought the pipeline that nobody wanted,” he said. “And they paid too much for it.”

The ruling also exposes the federal government’s shortcomings when it comes to meaningful dialogue with Indigenous peoples – despite Trudeau’s oft-repeated promises to do better. “Clearly the eloquent words of Prime Minister Trudeau do not reconcile with his actions on the ground,” said Phillip.

Describing the decision as a “massive victory”, Greenpeace Canada noted that the ruling offers the federal government a second chance of sorts. “Now it’s time for Prime Minister Trudeau to read the writing on the wall, dump this pipeline and shift the billions of public dollars slated for this problem-plagued project into Canada’s renewable energy economy,” Mike Hudema of the organisation said in a statement.

He added: “This summer’s fires, floods and choking smoke make it impossible to ignore the rising costs of climate inaction, so the prime minister should welcome the opportunity created by today’s ruling to get on the right side of history.”</s>Prime minister says government will get Trans Mountain project built ‘in the right way’

Justin Trudeau says his government remains committed to getting the Trans Mountain pipeline expansion built and its national climate-change plan — both of which were put in jeopardy by a court ruling that overturned federal approval for the project.

The prime minister says the government will move forward to get the project built “in the right way” by acknowledging the court’s criticism of the flawed environmental review process and the failure to meaningfully consult with Indigenous Peoples.

Thursday’s court ruling prompted Alberta Premier Rachel Notley to announce that her province is withdrawing from the national climate change plan and will stay out until the federal government gets its act together, as she put it.

While he’d prefer to work collaboratively with provinces on climate change, Trudeau says Notley’s move doesn’t change anything for the federal government.

READ MORE: B.C. First Nations hail court’s quash of Kinder Morgan pipeline approval

He says the federal government remains committed to imposing a carbon price on provinces that do not implement their own polluter-pay scheme — including Alberta if need be.

But he says Alberta’s own climate change plan remains in place, which means its carbon pricing regime will be in sync with the federal government’s for the next few years.

Like us on Facebook and follow us on Twitter</s>Prime minister says government will get Trans Mountain project built ‘in the right way’

Justin Trudeau says his government remains committed to getting the Trans Mountain pipeline expansion built and its national climate-change plan — both of which were put in jeopardy by a court ruling that overturned federal approval for the project.

The prime minister says the government will move forward to get the project built “in the right way” by acknowledging the court’s criticism of the flawed environmental review process and the failure to meaningfully consult with Indigenous Peoples.

Thursday’s court ruling prompted Alberta Premier Rachel Notley to announce that her province is withdrawing from the national climate change plan and will stay out until the federal government gets its act together, as she put it.

While he’d prefer to work collaboratively with provinces on climate change, Trudeau says Notley’s move doesn’t change anything for the federal government.

READ MORE: B.C. First Nations hail court’s quash of Kinder Morgan pipeline approval

He says the federal government remains committed to imposing a carbon price on provinces that do not implement their own polluter-pay scheme — including Alberta if need be.

But he says Alberta’s own climate change plan remains in place, which means its carbon pricing regime will be in sync with the federal government’s for the next few years.

Like us on Facebook and follow us on Twitter</s>Hours after a stunning Federal Court of Appeal decision in which Ottawa’s approval of the contentious Trans Mountain pipeline expansion was overturned, Premier Rachel Notley addressed Albertans about the latest hurdle to come before the project and dropped a political bombshell of her own.

“Signing on to the federal climate plan can’t happen without the Trans Mountain pipeline,” she told reporters at a new conference Thursday evening. “Today I’m announcing that with the Trans Mountain halted and the work on it halted, until the federal government gets its act together, Alberta is pulling out of the federal climate plan and let’s be clear, without Alberta, that plan isn’t worth the paper it’s written on.”

Notley said Alberta signing onto the plan was always contingent on the Trans Mountain pipeline project going forward.

READ MORE: Trans Mountain pipeline court decision ‘a real sad day for Alberta,’ says energy expert

On Thursday morning, a panel of three judges said the National Energy Board’s review of the Trans Mountain pipeline expansion proposal was so flawed that the federal government could not use it as a basis for its decision to approve the project.

Watch below: A court ruling on Thursday has left many people wondering if the Trans Mountain pipeline expansion project will ever go forward. Gord Steinke sat down with political analyst John Brennan to talk about the latest development in the pipeline saga.

The court also ruled the federal government did not sufficiently engage in meaningful consultations with First Nations before approving the project.

Notley said she spoke with Prime Minister Justin Trudeau earlier in the day where she laid out two specific demands: the federal government should file an appeal through the Supreme Court of Canada as soon as possible and Trudeau should call an emergency session of Parliament to “assert its authority” and to fix the NEB consultation process, which was criticized in Thursday’s court ruling.

“Successive federal governments created the mess we find ourselves in… now Ottawa needs to fix it,” Notley said.

At one point in the news conference, Notley said the current political and legal atmosphere in Canada renders it “practically impossible” to build a pipeline to tidewater.

Notley said Trudeau reaffirmed his commitment to ensuring the project goes ahead but did not provide a concrete answer on how or if he would follow through on her demands.

Watch below: Some videos from Premier Rachel Notley’s news conference on Thursday night.

In 2015, Alberta’s economy was rattled by a sudden collapse in global oil prices.

Since winning the Alberta election later that year, Notley and her NDP government have made getting more oilsands bitumen to tidewater a priority while also working to diversify the province’s economy and to develop a plan to address the threat posed by climate change.

Notley said she has no plans to drop her government’s climate action plan, including the carbon tax, and indicated her record on the climate change file is something she’s proud of.

Notley said she believes the federal government has a duty to amend its consultation process with Indigenous people on pipeline matters and that she believes a new and amended consultation process could potentially be completed by early 2019.

READ MORE: Kinder Morgan moving to suspend construction on Trans Mountain pipeline project following ruling

“It is a crisis,” she said of the situation. “Our ability to transport our most valuable commodity is subject to the whims of the White House and the U.S. government. Let’s not kid ourselves. This is a threat to Canadian sovereignty and Canadian economic security.”</s>OTTAWA — Justin Trudeau says his government remains committed to getting the Trans Mountain pipeline expansion built and also to its national climate-change plan — both of which were put in jeopardy by a bombshell court ruling that overturned federal approval for the project.

The government intends to move forward to get the pipeline expansion built “in the right way,” the prime minister said Friday, indicating that the government accepts the Federal Court of Appeal’s criticism of the approval process.

The court ruled Thursday that the National Energy Board’s environmental assessment of the project was fatally flawed because it ignored the potential impact of increased oil tanker traffic off British Columbia’s coast. It also ruled that the federal government had not fulfilled its duty to meaningfully consult with affected Indigenous groups.

“We are taking the time now to understand the court ruling, which addresses two things that are very important to this government — getting the science and the environmental protections right and making sure we are walking forward in a true path of reconciliation and partnership with Indigenous Peoples,” Trudeau said after an event in Oshawa, Ont.

“We’re going to continue to move forward to get this pipeline built in the right way by acknowledging what the court has said.”

Indeed, the federal government’s $4.5-billion purchase of the pipeline and expansion project from Kinder Morgan was finalized Friday. The government initiated the purchase last spring, after Kinder Morgan concluded the political and legal uncertainties surrounding the project rendered it too risky for its shareholders.

The expansion, aimed at getting Alberta’s oilsands bitumen to B.C.’s coast where it can be shipped to overseas markets, would triple the capacity of the Trans Mountain pipeline between Edmonton and Burnaby to 890,000 barrels a day, and would increase the number of tankers in Burrard Inlet seven-fold.

Thursday’s court ruling prompted Alberta Premier Rachel Notley to announce that her province is withdrawing from the controversial national climate change plan and will stay out until the federal government gets its act together, as she put it. Without Alberta, Notley asserted, the national plan “isn’t worth the paper it’s written on.”

But Trudeau suggested Notley’s move doesn’t alter the federal commitment to the national climate change plan — or have any impact on it for at least a few years.
• Trudeau met by more anti-pipeline protesters on his B.C. long weekend tour

The federal plan requires provinces and territories to put a price on carbon emissions — through a cap and trade system, a carbon tax or some hybrid scheme — of at least $20 per tonne, starting Jan. 1. The minimum price will rise by $10 per tonne every year until it reaches $50 per tonne in 2022.

The federal government intends to impose a carbon price on any province that fails to come up with its own carbon pricing scheme — including Alberta if need be, Trudeau indicated.

“I’ve always said, if there are provinces that don’t want to participate in this climate change plan, the federal government will do it alone.”

However, he said that won’t be an immediate issue with Alberta since that province’s carbon pricing plan remains in place and “is equivalent to the targets set by the federal government, at least for the next few years.”

Notley’s government started imposing a $20-per-tonne carbon tax last year, which rose to $30 per tonne this year. Until 2021, Alberta’s price will be higher than or equal to the federal targets.

That could change if Notley loses next year’s provincial election. Jason Kenney, United Conservative party leader and front-runner in opinion polls at the moment, has vowed to scrap the province’s carbon tax and join Saskatchewan and Ontario in a legal challenge to the federal climate plan.</s>Federal judges out of touch in Trans Mountain pipeline expansion case, says Kenney

Alberta’s Opposition Leader says the federal judges who overturned approval for the Trans Mountain pipeline expansion are out of touch with the real world.

“They keep moving the goalposts on what is required,” Jason Kenney, leader of the United Conservatives, said in Calgary Thursday. “This is what is creating massive investor uncertainty.

“I think (judges) sometimes they write these decisions in an academic bubble not realizing the real-world consequences.”

The Federal Court of Appeal overturned Ottawa’s approval of the pipeline, which would have doubled the line from Edmonton to the B.C. coast and tripled the amount of oil shipped to fetch a better price on overseas markets.

The panel of three judges cited lack of consultation with Indigenous groups and a failure to address the impact on marine traffic.

Kenney said the National Energy Board made it clear it did not have regulatory responsibility over marine traffic in its review of Trans Mountain.

Alberta Premier Rachel Notley was to comment later Thursday.

RELATED: Notley pulling Alberta out of federal climate plan after pipeline decision

Trudeau said on Twitter he spoke with Notley on Thursday and “reassured her that the federal government stands by the TMX expansion project and will ensure it moves forward in the right way.”

Kenney said Notley has not helped matters by prematurely celebrating the construction of the pipeline while imposing a carbon tax in the mistaken belief it would provide so-called “social licence” that would persuade environmental opponents to stand down.

Alberta Party Leader Stephen Mandel also said Notley was guilty of premature celebration after Trudeau’s government announced in May that it would buy Trans Mountain to ensure it got built.

“There was an incredible smugness about how this was going to go ahead,” said Mandel. “That just shows the naivete of what really happens in politics and nothing is for sure.”

Edmonton Mayor Don Iveson and his Calgary counterpart Naheed Nenshi said they were disappointed with the court’s decision.

“This pipeline is a critical piece of infrastructure for our nation and it will provide important benefits from coast to coast,” Nenshi said in a statement.

The Trans Mountain line has dominated Alberta politics in the last year and it, along with everything it represents — including Alberta’s carbon tax — is expected to overshadow all other issues in the spring election.

Notley has said Alberta’s commitment to environmental stewardship — expressed through its carbon tax, commitment to phase out coal-fired electricity along with other green initiatives — allowed Trudeau’s government to follow through on its commitment to get the line built.

To that end, the federal government bought the line for $4.5 billion when owner Kinder Morgan Canada wavered this spring.

The pipeline is also a financial lifeline for Notley’s government, which has been running multibillion-dollar deficits while avoiding introducing a sales tax or making significant cuts to the budget.

The province has budgeted for increased pipeline access to drive non-renewable resource revenue to more than double to $10.4 billion by 2024 to balance the budget.

Political scientist Chaldeans Mensah said the ruling is a setback for the political fortunes of the NDP, which has been trailing the United Conservatives in opinion polls.

“This will certainly build into the narrative from the Conservatives that the idea of social licence, which was part of the NDP push on the issue, has not borne fruit,” said Mensah of MacEwan University in Edmonton.

Political scientist Duane Bratt said that while Notley cannot be faulted for the court decision, it’s still a political victory for Kenney.

“This is a major blow for Notley,” said Bratt, with Mount Royal University in Calgary.

He said Notley not only needs the pipeline, but needs substantial progress on it in time for the election campaign — something that now appears unlikely.

“Whether (the federal government) appeals to the Supreme Court or whether they simply do the modifications recommended by the Federal Court of Appeal, both of those take time,” said Bratt.

Like us on Facebook and follow us on Twitter.</s>Prime Minister Justin Trudeau is being blasted by his chief rivals as both a bungler of resource projects and failed climate leader after seeing his approval of the Trans Mountain pipeline expansion overturned in court.

On Thursday, the Federal Court of Appeal quashed the Trudeau government's 2016 greenlight of a contentious expansion of the pipeline, which runs from near Edmonton to Burnaby, B.C. The decision cited a flawed review by the National Energy Board and the failure of Ottawa to meaningfully consult First Nations.

The stunning news did nothing to deter Finance Minister Bill Morneau from saying the government will press forward with its plan to buy the pipeline and expansion assets from Kinder Morgan Canada for $4.5 billion. Liberals "inherited a flawed environmental review process" from the previous Tory government, he said, and have worked to improve things.

Conservative Leader Andrew Scheer and NDP Leader Jagmeet Singh each held press conferences to hammer Trudeau — but for different reasons.

Speaking in Winnipeg, Scheer called the decision "devastating news" for energy workers and "another gut punch" for Canadian taxpayers.

The ruling showed the Trudeau government could not hit "the standards that it imposed on itself," the Tory leader said.

"This was a $4.9 billion acquisition with no plan for completion. And today we find out that the goalposts have been missed again by this Trudeau government," he said.

But the Tory leader ducked a question on whether the government should walk away from its purchase and face financial penalties. He called it a "sad state of affairs" that such an option is part of the conversation.

Scheer also said he was "quite confident" a Tory government would have consulted Indigenous communities about the project in a meaningful way, but didn't offer specifics.

The Tory leader was perhaps more aggressive in a statement he released to media, saying the project was "quickly becoming the most expensive scandal" in Canadian political history.

"This is Justin Trudeau's personal failure," he said in the release.

Singh, meanwhile, told reporters in Ottawa that the Trudeau government did not consider what the project would mean to coastal communities and marine life in B.C., including a sevenfold increase in tanker traffic. He also cited past Trans Mountain spills.

"Climate leaders don't buy or expand pipelines," he said.

Singh does not hold a federal seat but is running in the upcoming byelection in Burnaby South. The city of Burnaby unsuccessfully pushed the Supreme Court to stop the project.

The NDP leader said the Liberal government failed to respect Indigenous rights and must now stop fighting First Nations in court.

"The government should never have bought this pipeline," he said. "No matter what the Liberal government says it is clear to Canadians that this is not a sound investment."

Singh called on the Trudeau government to stop the expansion and "explore all legal options" to end the purchase.

Green Party Leader Elizabeth May, who was arrested in March protesting the pipeline, told CBC News that the Liberals can either start from scratch with a new environmental review and consultations with Indigenous communities, or cut their losses.

' Kinder Morgan is going to laugh its way to the bank'

"Like any prospective homeowner about to buy a house that finds the foundation is cracked, find a way to get out of the contract," May said. "Pay penalties if you have to. But don't go ahead with buying a $4.5 billion leaky pipeline that is 65 years old."

Calling the situation a "nightmare of their own making," May said Liberals need to abandon a situation that is not "fixable" and stop throwing good money after bad.

"There's no reason to continue to play the sucker in this scenario," she said. "Kinder Morgan is going to laugh its way to the bank. Let's not let that happen."</s>Notley is also saying Trudeau must call an emergency session of Parliament

Alberta Premier Rachel Notley says she’s pulling the province out of the federal climate change plan.

The move comes after the Federal Court of Appeal quashed the approval of the contentious Trans Mountain pipeline expansion.

Notley is calling on the federal government to immediately appeal the ruling to the Supreme Court of Canada.

She says Prime Minister Justin Trudeau must also call an emergency session of Parliament to fix the process so that the pipeline can be built.

Until that happens, she says the province will remain outside the federal climate plan.

The federal government has said it is reviewing the court decision and plans on pushing forward with the project.

Like us on Facebook and follow us on Twitter.</s>VANCOUVER — The Federal Court of Appeal has overturned Ottawa’s approval of the Trans Mountain pipeline expansion. Here’s what some are saying about 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.” — Finance Minister Bill Morneau.

“Here we are, well into this process, and the Trudeau government has no plan whatsoever to get Trans Mountain built.” — Conservative Leader Andrew Scheer.

“We went into consultations with the federal government with open hearts and minds, but sadly the process could best be described as window dressing. We had a strong sense that the decision had already made before we even sat down. It was clear from the timing of the decision that they did not meaningfully consider much of the information we provided. The court has agreed with us on every issue.” — Chief Maureen Thomas of the Tsleil-Waututh Nation.

“Thankfully, the court has stepped in where Canada has failed to protect and respect our rights and our water.” — Coldwater Chief Lee Spahan.

“I don’t think it’s about winning and losing. It’s about the rule of law. I think what I am most satisfied with is that when we formed a government, we looked at what were the practical things we could do within the context of the Canadian family to make our arguments and I think that we’ve done that effectively.” — B.C. Premier John Horgan on his government’s opposition to the pipeline.

“This decision is a monumental win for the rights of Indigenous Peoples and all of us who stand with them in firm opposition to a project that would massively increase climate pollution and put our coast at huge risk of oil spills.” — Vancouver Mayor Gregor Robertson in a statement.

“Going forward, we urge politicians and other project proponents to shift their focus away from projects that lock us into dependence on fossil fuels.” — Ecojustice lawyer Dyna Tuytel.

“This decision proves that in an age of reconciliation, Canada needs to up its game when engaging in deliberative dialogues with Indigenous Peoples. Today, Ottawa received a strong legal message that its duty to consult goes far beyond the airing of grievances to actually incorporating First Nations’ concerns into all decisions about developments that affect their rights, title and territories.” — David Suzuki Foundation CEO Steve Cornish in a statement.

“This decision is yet another example of how Canada’s broken regulatory system is undermining Canadian competitiveness and driving away investment.” — Perrin Beatty, president and CEO of the Canadian Chamber of Commerce.

“This pipeline is a critical piece of infrastructure for our nation, and it will provide important benefits to our economy from coast to coast. It is also part of building a better, stronger, more resilient economy for all Calgarians. I will be very supportive of all future actions to move this project forward.” — Calgary Mayor Naheed Nenshi.

“For years, we have insisted that federal consultation with First Nations was flawed and that the federal government ignored the threat to the dwindling orca population — and today the court system affirmed that. This pipeline is dead. It’s time for Prime Minister Justin Trudeau and the federal government to stop wasting taxpayer money and move on.” — Tzeporah Berman, deputy director of Stand.earth.

“The Trudeau government has failed in its efforts, the rhetoric around reconciliation with First Nations’ deserves to be a meaningful endeavour, and this court decision supports that proposition. This decision reinforces our belief as a nation and as part of the coastal communities in which we live 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 and stand by his words.” — Khelsilem, a councillor and spokesperson for Squamish Nation.</s>Justin Trudeau says his government remains committed to getting the Trans Mountain pipeline expansion built and also to its national climate-change plan — both of which were put in jeopardy by a court ruling that overturned federal approval for the project.

The prime minister says the government will move forward to get the project built “in the right way” by acknowledging the court’s criticism of the flawed environmental review process and the failure to meaningfully consult with Indigenous Peoples.

READ MORE: Canada’s climate change plan — Alberta is out, so is it dead on the table?

Thursday’s court ruling prompted Alberta Premier Rachel Notley to announce that her province is withdrawing from the national climate change plan and will stay out until the federal government gets its act together, as she put it.

While he’d prefer to work collaboratively with provinces on climate change, Trudeau says Notley’s move doesn’t change anything for the federal government.

He says the federal government remains committed to imposing a carbon price on provinces that do not implement their own polluter-pay scheme — including Alberta if need be.

But he says Alberta’s own climate change plan remains in place, which means its carbon pricing regime will be in sync with the federal government’s for the next few years.
A Canadian court overturns Prime Minister Justin Trudeau’s decision to expand the Trans Mountain Pipeline.