Court said federal government failed o engage in meaningful consultations with First Nations

The Federal Court of Appeal has overturned Ottawa’s approval of the contentious Trans Mountain pipeline expansion, but Finance Minister Bill Morneau is pledging to push ahead with his government’s purchase of the project. In a unanimous decision by a panel of three judges, the court says the National Energy Board’s review of the proposal was so flawed that the federal government could not rely on it as a basis for its decision to approve the expansion. The court also concludes that the federal government failed in its duty to engage in meaningful consultations with First Nations before giving the green light to the project. Prime Minister Justin Trudeau’s government approved the project in 2016 and is so determined to see the line built that it announced plans this spring to buy the pipeline and expansion project for $4.5 billion after Kinder Morgan Canada balked at moving ahead with construction. It means upholding or commitments with Indigenous peoples and it means responsibly protecting Canada’s and Canadians’ investment.”

The ruling requires the energy board to conduct a new review —which the court suggests could be kept short — and means the government will have to redo part of its consultation with Indigenous groups. The case combined nearly two dozen lawsuits and contended that First Nations were not adequately consulted with before a review by the energy board or cabinet approval of the project. Eugene Kung, a lawyer who has worked for project opponent the Tsleil-Waututh Nation, warned that if Ottawa tries to rush consultation, the project could just wind up back before the court. “Thankfully, the court has stepped in where Canada has failed to protect and respect our rights and our water.”

Environmental groups and the cities of Vancouver and Burnaby also challenged the project in Federal Court last fall. The expansion would nearly triple capacity on an existing line from Edmonton, Alberta to a port in the Vancouver area for export and was approved by the federal government in 2016. The expansion project would triple the bitumen-carrying capacity of the Trans Mountain pipeline between near Edmonton and Metro Vancouver and increase tanker traffic in the Burrard Inlet sevenfold. The board’s first review took two years, and while the new assessment would be focused specifically on tanker traffic, Tollefson says the board must seriously consider the impacts on endangered southern resident killer whales. As for consultations with Indigenous communities, the court found that the government’s representatives “limited their mandate to listening to and recording the concerns of the Indigenous applicants and then transmitting those concerns to the decision-makers.” There was no “meaningful two-way dialogue.”

“The Indigenous applicants were entitled to a dialogue that demonstrated that Canada not only heard but also gave serious consideration to the specific and real concerns the Indigenous applicants put to Canada, gave serious consideration to proposed accommodation measures and explained how the concerns of the Indigenous applicants impacted Canada’s decision to approve the project.”

The Federal Court case was the most significant legal challenge facing the project and the decision may still be appealed to the Supreme Court of Canada. This reaffirms that and I think Canadians should expect that we have a more streamlined, understandable regulatory system than what we do today.”

Kinder Morgan shareholders voted overwhelmingly on Thursday to approve the $4.5 billion sale of the pipeline and the expansion project to the Canadian Government.
Canadian Prime Minister Justin Trudeau reaffirms his support for the Trans Mountain expansion project after the Federal Court of Appeal rules suspension of the project.