The Federal Court of Appeal has quashed the federal government’s approval of the troubled Trans Mountain expansion project, after concluding that Prime Minister Justin Trudeau’s cabinet made its decision without considering all evidence and failing in its legal duty to consult First Nations.
The decision, announced Aug. 30, is the first major court defeat for the project, requiring the government to ask the federal energy regulator or its successor to redo a federal environmental evaluation and correct a “critical” mistake it made to ignore the consequences of increased oil tanker traffic off the coast of British Columbia.
The decision will also require the Trudeau government to restart its consultations with First Nations about the project, before construction can proceed.
The government now has the option to appeal the decision. Finance Minister Bill Morneau tweeted Thursday that he had received the ruling and was “taking the appropriate time to review the decision.”
In a press conference outside his Toronto office later in the day, the minister indicated it was too early to say whether an appeal was in the works.
“We need to have sufficient amount of time to analyze the decision,” he said. “While we want to make sure that the project proceeds, we also want to make sure that it moves forward in the right way.”
We have received the ruling by the Federal Court of Appeal, and are taking the appropriate time to review the decision. I’ll be speaking to reporters regarding the Trans Mountain Expansion Project later today. https://t.co/r5z9qKraZs
— Bill Morneau (@Bill_Morneau) August 30, 2018
The government announced May 29 that it would spend $4.5 billion to buy Kinder Morgan Canada’s existing pipeline and the expansion project. It ordered one of its Crown corporations, Export Development Canada, to help arrange the multi-billion-dollar purchase.
On the same morning that the Court of Appeal decision was announced, shareholders in Kinder Morgan Canada Ltd. voted 99.98 per cent in favour of the $4.5 billion sale to Canada. “The parties expect to close the transaction as early as Aug. 31, 2018,” the company stated.
Morneau echoed this timeline, saying “our next step is to close on the acquisition of the project. We expect that will happen as early as tomorrow.”
‘A major legal victory’
Chief Maureen Thomas of the Tsleil-Waututh Nation said in a statement he was pleased to see the court’s decision.
“We went into consultations with the federal government with open hearts and minds, but sadly the process could best be described as window dressing,” said the chief.
“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.”
The Coldwater Indian Band, which asserts Aboriginal rights and title to an area where the pipeline system touches, also said in a statement it had “won a major legal victory today in its fight to protect its drinking water and sacred areas.”
“This is a major victory for my community. Until now our rights and our water have been disregarded by Kinder Morgan and the Government of Canada,” Coldwater Chief Lee Spahan is quoted as stating.
“Thankfully, the court has stepped in where Canada has failed to protect and respect our rights and our water. Our members will be hugely relieved.”
The ruling states that Canada “failed to meaningfully engage with Coldwater” and discuss options to deal with concerns over drinking water.
#FCA quashes the #TMEX approvals. Marine shipping illegally excluded and consultation "well short of the mark set by SCC." TWN is pleased that the FCA has recognized our inherent governance rights. Join us for further comment and to hear what comes next at 9:30am at CRAB park.
— TsleilWaututh Nation (@tsleilwaututh) August 30, 2018
Khelsilem, councilor and spokesperson for the Squamish Nation, which asserts traditional territory in an area where pipeline infrastructure would be located, celebrated the court’s ruling “in favour of our Indigenous rights” in a separate statement.
“The Trudeau government failed in its rhetoric about reconciliation with First Nations’ and this court decision shows that,” he said.
“This decision reinforces our belief 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,” added Khelsilem.
“It is time for Prime Minister Trudeau to do the right thing.”
‘Canada displayed a closed-mindedness’
The unanimous ruling criticized the Trudeau government for making a decision based on inadequate evidence from the report prepared by the National Energy Board after it held hearings to review the project.
It also said the government’s consultation process with First Nations wasn’t meaningful or adequate.
“Indeed, a review of the record of the consultation process discloses that Canada displayed a closed-mindedness when concerns were expressed about the Board’s report and was reluctant to depart from the findings and recommendations of the Board,” said the ruling, drafted by Justice Eleanor Dawson.
“With rare exceptions, Canada did not dialogue meaningfully with the Indigenous applicants about their concerns about the Board’s review. Instead, Canada’s representatives were focused on transmitting concerns of the Indigenous applicants to the decision-makers and nothing more. Canada was obliged to do more than passively hear and receive the real concerns of the Indigenous applicants.”
If built, the Trans Mountain expansion would triple the capacity of an existing pipeline system, allowing it to ship up to 890,000 barrels of bitumen and other petroleum products from Alberta’s oilpatch, to a Burnaby terminal in metro Vancouver.
The federal and Alberta governments, along with oil companies, say it would generate growth by giving oilsands producers access to new markets on the Pacific Ocean. Dozens of affected Indigenous communities, environmentalists and some municipalities along the route have argued that the project is too risky and would push Canada’s climate change goals out of reach.
The ruling acknowledged that the government had attempted to address concerns about oil tanker shipping with its Oceans Protection Plan, but that this failed to address their legal requirement to ensure that the NEB had considered this during its review.
The FCA’s decision in Tsleil-Waututh Nation et al. v. Attorney General of Canada et al. (pertaining to the Trans Mountain pipeline) is available at the following link: https://t.co/Q7c5wUJPFd
— Federal Court of Appeal (@FedCourtApp_en) August 30, 2018
“The unjustified failure to assess the effects of marine shipping under the Canadian Environmental Assessment Act, 2012, and the resulting flawed conclusion about the effects of the Project was so critical that the Governor in Council could not functionally make the kind of assessment of the Project’s environmental effects and the public interest that the legislation requires.”
The ruling also noted that the Trudeau government gave First Nations only a few weeks to review a voluminous report that summarized all of the efforts it was supposedly taking to accommodate them.
“The inadequacies of the consultation process also flowed from Canada’s unwillingness to meaningfully discuss and consider possible flaws in the Board’s findings and recommendations and its erroneous view that it could not supplement or impose additional conditions on Trans Mountain,” said Dawson’s ruling.
“Canada is not to be held to a standard of perfection in fulfilling its duty to consult. However, the flaws discussed above thwarted meaningful, two-way dialogue. The result was an unreasonable consultation process that fell well short of the required mark.”