Federal Court of Appeal upholds second approval of TMX pipeline

Cheryl Sanders
February 5, 2020

The ruling is in response to court challenges filed by four First Nations from British Columbia after the federal government approved the project for a second time last June.

A federal court judge has rejected claims by several First Nations that federal officials failed to adequately consult with them on the Trans Mountain pipeline, removing a major barrier hanging over the long-delayed project.

Day said watching the ongoing delays to the pipeline expansion project has been frustrating because the workers never know what's going on. "There are a number of things in this court decision that we think aren't right".

Coldwater Chief Lee Spahan said the decision by the Court of Appeal "wasn't meaningful".

It said government officials "looked at the issue of Canada's compliance with the duty to consult afresh", in the second round of negotiations. The National Energy Board had failed to properly assess the environmental impacts of an expanded pipeline on the marine environment - particularly on killer whales.

At the hearing last month, the Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band and a coalition of small First Nations from the Fraser Valley argued that the government came into the consultations having predetermined the outcome.

Of the 129 Indigenous groups potentially impacted by the project, more than 120 either support it or do not oppose it, the court said.

The court decision means construction, which is already underway, can continue, although the First Nations whose case was dismissed have 60 days to appeal to the Supreme Court.

"The end result was not a ratification of the earlier approval, but an approval with amended conditions flowing directly from the renewed consultations", the ruling said.

They also say while it is true not all the concerns raised were accommodated, "to insist on that happening is to impose a standard of flawless", that is not required by law.

Premier Jason Kenney also weighed in on the decision, calling it "a victory for common sense and the rule of law". "I think the legal hurdles are slowly disappearing and clearing a path for the construction of that pipeline".

The court acknowledged that decisions affecting Indigenous Peoples have too often been made while excluding those very communities with damaging effects.

The project, now under construction, would almost triple the pipeline's capacity to 890K bbl/day by Q3 2022.

It has become a political football for Prime Minister Justin Trudeau as he insists Canada can continue to expand oil production and still meet its commitments to cut greenhouse gas emissions.

The Trans Mountain pipeline expansion was approved by federal cabinet in 2016, but the expansion project was halted by the federal Court of Appeal in 2018, literally hours after shareholders with Kinder Morgan voted to approve the sale of the pipeline and expansion project to the federal government for $4.5 billion.

Finance Minister Bill Morneau, who appeared alongside O'Regan for the brief media appearance, said the government was "really pleased that this project is moving forward".

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