Appeal of long-delayed Trans Mountain oil pipeline is dismissed

Andrew Cummings
July 5, 2020

Canada's highest court will not allow a group of First Nations to appeal the federal government's second approval of the Trans Mountain pipeline expansion, upholding the Federal Court of Appeal's unanimous February decision that Ottawa adequately fulfilled its legal duty consult.

The Squamish Nation, Tsleil-Waututh Nation, Ts'elxweyeqw Tribes and Coldwater Indian Band were seeking leave to appeal a February decision by the Federal Court of Appeal that found cabinet's approval of the pipeline project in June 2019 was reasonable under the law.

While the applicants and their supporters issued press releases expressing deep disappointment, Trans Mountain Corp.

The pipeline expansion still faces stiff environmental opposition from British Columbia's provincial government but construction is under way.

George-Wilson said the Appeal Court's decision earlier this year represented a setback for reconciliation.

Squamish Nation spokesperson and Coun.

"Throughout our renewed consultations process with Indigenous groups, we worked to address the issues originally identified by the FCA in its August 2018 decision".

Ottawa has now approved the project twice, forced to do more Indigenous consultation and environmental review after the Federal Court of Appeal agreed with First Nations and environment groups that the first attempts were flawed. Coldwater Chief Lee Spahan said then that he felt Canada "had their minds set already on this decision".

"To those who are disappointed with today's SCC decision - we see you and we hear you".

The Union of BC Indian Chiefs said the pipeline construction violates Indigenous rights and title and poses considerable risk to the environment and climate.

"The Government of Canada is committed to a renewed relationship with Indigenous peoples and understands that consultations on major projects have a critical role to play in building that renewed relationship". It would almost triple capacity to 890,000 barrels per day.

The federal government has owned the pipeline since 2018 when it bought it from Kinder Morgan.

In January, the Supreme Court ruled against the B.C. government's attempt to regulate what can flow through the pipeline because as an interprovincial project it's entirely within federal jurisdiction.

"The applicants' submissions are essentially that the Project can not be approved until all of their concerns are resolved to their satisfaction", justices Marc Noël, J.D. Denis Pelletier and J.B. Laskin wrote at the time in their unanimous reasons for judgment.

"The government approved TMX because it is an important project for Canada".

The respondents in the case were the Canadian attorney general, Trans Mountain Pipeline ULC and Trans Mountain Corp.

"Essentially what it tells Indigenous people right now - First Nations and Métis and Inuit peoples- is 'yeah, you have a right to consult, but we have a right not to listen, '" she said.

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