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First Nations Fail in Top Court Bid to Halt Trans Mountain Pipeline

Chief challenging lower court ruling calls decision ‘a major setback for reconciliation.’

Andrew MacLeod 2 Jul 2020 | TheTyee.ca

Andrew MacLeod is The Tyee's Legislative Bureau Chief in Victoria and the author of All Together Healthy (Douglas & McIntyre, 2018). Find him on Twitter or reach him at

The Supreme Court of Canada has decided not to hear an appeal from three B.C. First Nations challenging a February decision allowing the Trans Mountain pipeline expansion project to go ahead.

The court announced today that it had rejected the application from the Coldwater Indian Band, Tsleil-Waututh Nation and Squamish Nation seeking to appeal the Federal Court of Appeal’s decision.

While the applicants and their supporters issued press releases expressing deep disappointment, Trans Mountain Corp. CEO Ian Anderson said in a statement on the company’s website that it’s pleased with the decision.

“Following the federal government’s second approval of the Trans Mountain Expansion Project and many years of consultation and regulatory reviews, we are pleased to continue building this nationally important Project,” Anderson said.

Tsleil-Waututh Chief Leah George-Wilson said her nation is extremely disappointed. “This case is about more than a risky pipeline and tanker project; it is a major setback for reconciliation,” she said. “It reduces consultation to a purely procedural requirement that will be a serious barrier to reconciliation.”

Squamish Nation spokesperson and Coun. Syeta'xtn, who is also known as Chris Lewis, said Indigenous people have a right to meaningful consultation and accommodation and the courts should be scrutinizing that process.

“The Federal Court of Appeal’s decision to let the federal government be the judge and jury of its own consultation efforts was flawed in so many ways, and we are shocked to learn that the Supreme Court of Canada has failed to recognize that,” he said. “Though this particular challenge is now over, we will continue to exercise all available options to hold the government to a higher standard, both for this project and for future projects in our territories.”

Coldwater Chief Lee Spahan said the decision was disappointing, but not surprising.

“We knew the chances of the SCC granting leave were slim, given the momentum of the project and the Federal Court’s finding that protection of our water can still take place in future routing decisions, but we felt we had to use every tool available to us.”

The Union of BC Indian Chiefs said the pipeline construction violates Indigenous rights and title and poses considerable risk to the environment and climate. It also increases the number of large work camps, which threatens the safety and security of Indigenous women and girls, the union said in a press release responding to the court’s decision. The final report of the National Inquiry into Missing and Murdered Indigenous Women and Girls identified the connection between work camps and assaults on Indigenous women.

“The Crown has failed to adequately consult with Indigenous peoples on the TMX project, and the court has today failed to hold the Crown accountable to its constitutional duties,” the released quoted union president Grand Chief Stewart Phillip. “We remain committed to asserting our inherent Indigenous Title and Rights and to protecting the lands and waters in our territories.”

The $12.6-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 federal government has owned the pipeline since 2018 when it bought it from Kinder Morgan.

The February Federal Court of Appeal decision found the First Nations wanted the project held to a standard higher than the law requires.

“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 at the time in their unanimous reasons for judgment.

“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 respondents in the case were the Canadian attorney general, Trans Mountain Pipeline ULC and Trans Mountain Corp. Today’s Supreme Court decision says that their costs will be covered by the applicants.  [Tyee]

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