First Nations Vow to Fight on after Trans Mountain Defeat

The Federal Court of Appeal has dismissed an application from First Nations seeking to overturn the government’s approval of the Trans Mountain pipeline expansion because they had not been adequately consulted.

While pipeline supporters applauded the court’s decision, opponents — including representatives of the First Nations involved in the challenge — promised the fight will continue both inside and outside the legal system.

“The applicants’ submissions are essentially that the Project cannot be approved until all of their concerns are resolved to their satisfaction,” Justices Marc Noël, J.D. Denis Pelletier and J.B. Laskin wrote in their unanimous reasons for judgment released today.

“If we accepted those submissions, as a practical matter there would be no end to consultation, the Project would never be approved, and the applicants would have a de facto veto right over it,” it said.

The application was filed by the Coldwater Indian Band, Squamish Nation and Tsleil-Waututh Nation along with the Aitchelitz, Skowkale, Shxwhá:y Village, Soowahlie, Squiala First Nation, Tzeachten and Yakweakwioose.

The respondents were the Canadian attorney general, Trans Mountain Pipeline ULC and Trans Mountain Corporation. The attorneys general for Alberta and Saskatchewan intervened, as did the Canadian Energy Regulator (formerly known as the National Energy Board).

The $7.4-billion project, already under construction, will twin an existing 1,150-kilometre pipeline from near Edmonton to Burnaby, tripling capacity to 890,000 barrels per day.

The expansion has been strongly opposed by the Indigenous governments challenging it in court, as well as by local governments, environmental groups and individuals. More than 200 people have been arrested protesting construction in the Lower Mainland, including former Green Party of Canada leader Elizabeth May and now Vancouver Mayor Kennedy Stewart, cases that have led to charges in many cases and proceeded through the court system.

In a 2018 ruling, the court had found that the federal government’s original decision to approve the expansion of the pipeline, which it now owns after buying it from Kinder Morgan for $4.5 billion, was based on an “impermissibly under-inclusive” environmental assessment and a failure by the Crown to fulfil its duty to consult with Indigenous peoples.

Today’s decision found the consultation process launched after that ruling has been sufficient, justifying the subsequent federal government approval.

“Contrary to what the applicants assert, this was anything but a rubber-stamping exercise,” the justices ruled. “The end result was not a ratification of the earlier approval, but an approval with amended conditions flowing directly from the renewed consultation.”

“It is true that the applicants are of the view that their concerns have not been fully met, but to insist on that happening is to impose a standard of perfection, a standard not required by law.”

Trans Mountain Corporation welcomed the ruling. “After many years of consultation and review we are pleased to be able to continue moving forward and building the Project in respect of communities, and for the benefit of Canadians,” President and CEO Ian Anderson said in an emailed statement.

“The Government of Canada’s additional Indigenous consultation represented an immense undertaking by many parties. The Government was committed to a specific and focused dialogue with affected Indigenous communities to ensure Canada, and the Company heard their concerns and responded.”

Alberta Premier Jason Kenney tweeted “Another win on the #TMX pipeline for Alberta! Pleased to see this unanimous decision by the Federal Court of Appeal to reject this challenge. Now let’s get it built.”

Representatives of the First Nations involved in the case expressed deep disappointment with the ruling during a news conference in Vancouver but said the fight will continue.

“Disappointing as it is, it’s one step,” said Tsleil-Waututh elected Chief Leah George-Wilson. “We have far longer to go in this journey.”

“We’ll continue to fight to enforce our jurisdiction within our territories,” said Khelsilem, a Squamish Nation elected councillor, stressing the continued right to self-determination on unceded lands.

While there are legal options to continue the fight, he said, it’s worth remembering B.C.’s long history of civil disobedience in support of environmental causes. “There are a lot of people who are willing to do a lot to defend our coast and defend our communities.”

The applicants have 60 days to review the decision and decide whether to appeal it to the Supreme Court of Canada.

Several speakers pointed out that the federal government’s drive to complete the pipeline expansion is at odds with its stated goals of reconciliation with Indigenous people and action on the climate crisis. The pipeline will carry bitumen from Alberta’s oil sands to be exported by tanker from Burnaby.

“Reconciliation stopped today,” said Rueben George, a spokesperson for the Sacred Trust Initiative of the Tsleil-Waututh Nation. “This government is incapable of making sound decisions for our future generations.”

University of Victoria law professor Chris Tollefson said the appeal court’s decision was unsurprising and the matter is almost certainly headed to the Supreme Court of Canada.

The original decision requiring additional consultations “made it clear there were some fundamental problems with the process and sent it back for those to be fixed,” said Tollefson, who represented BC Nature through the National Energy Board process.

“The new process was not much better than the old one. It still left many of the same questions and problems on the table,” he said. “Instead of opening the courthouse door and hearing those arguments, what the court did the second time was to severely constrain which arguments it would hear and from whom they would hear them.”

“What we have is a judicial process that is very much open to criticism in terms of giving parties with a very legitimate stake, who have worked in this process, they’ve been effectively denied their ability to make their case.”

Today’s decision answers a small number of questions for a narrow number of litigants, meaning the Supreme Court will eventually have to rule on all the still unanswered questions, he said.

“It’s not the end of the story.”

Today’s ruling follows a unanimous January Supreme Court of Canada decision that found British Columbia lacked the jurisdiction to regulate the flow of heavy oil across the province.

*Story updated on Feb. 4 at 10:16 p.m. to reflect updates from Chris Tollefson received after press time.