By Andru McCracken
A decision made at the Federal Court of Appeal has dealt a blow to the Trans Mountain pipeline expansion project because the company failed to adequately consult First Nations and failed to account for the risk posed by shipping.
The Federal Court of Appeal Judge Eleanor R. Dawson said two things were wrong in the process that led to an order in council to allow the project to go ahead.
The court quashed the order in council.
“The Order in Council’s validity is challenged on two principal grounds: first, the [National Energy] Board’s process and findings were so flawed that the Governor in Council could not reasonably rely on the [National Energy] Board’s report; second, Canada failed to fulfil the duty to consult owed to Indigenous peoples.”
The Judge concluded that Canada acted in good faith in consulting First Nations as required by the Supreme Court, but towards the end of the consultation, Canada’s efforts fell short.
“Canada failed in Phase III to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns. The duty to consult was not adequately discharged.”
According to Finance Minister Bill Morneau, who negotiated the $4.5-billion deal to buy the Trans Mountain pipeline and expansion project from Kinder Morgan Inc. in May, the federal government is committed to building the pipeline.
In an interview reported in the Financial Post, Morneau said this:
“This is a project that’s in Canada’s national interest. A project that means thousands of good, well-paying jobs for the middle class,” Morneau said. “This one will be a strong, commercial project once we de-risk it. That’s what we’re attempting to do, so we can be in the market in the long term.”
“The court has asked us to respond promptly and in a meaningful way to today’s decision and has given us some good directions in next steps.”
Bob Zimmer, Member of Parliament for Prince George-Peace River-Northern Rockies, said he’s disappointed.
“I am extremely disappointed in the ruling made by the Federal Court of Appeal today which will only mean more legal hurdles for a project that has already undergone a lengthy approval process,” said Zimmer.
“With this decision we are sending a message to potential investors that we are closed for business. Canada is one of the cleanest natural resource producers in the world with a great respect for human rights.”
Lawyers from West Coast Environmental Law are part of the legal team advising the Tsleil-Waututh Nation, one of the primary parties in the consolidated judicial review.
“We are absolutely delighted with this result. Today the Court confirmed what we and our allies have been saying all along – the federal environmental review of the Trans Mountain project was inadequate, and the government’s consultation with Indigenous peoples affected by this project was fundamentally flawed,” said Jessica Clogg, Executive Director and Senior Counsel.
In an interview on CBC radio Friday morning, a day after the ruling was made, Valemount’s Mayor Jeannette Townsend voiced her concerns about the relative safety of moving oil by train versus pipeline.
“Trains come through here once every half hour and many of them have oil tankers,” said Townsend. She also expressed disappointment on behalf of local businesses that were expecting a boost from construction.
