The Federal Court of Appeal has dismissed an appeal by Indigenous groups challenging the federal government’s approval of the Trans Mountain expansion project — clearing yet another major legal hurdle for the long-delayed $7.4 billion project, which will carry nearly a million barrels of Alberta oil per day to the B.C. coast.
In a unanimous 3-0 decision, the court ruled that Ottawa carried out “reasonable” and “meaningful” consultations with Indigenous peoples affected by the project’s construction before approving the pipeline for a second time.
“This was anything but a rubber-stamping exercise. The end result was not a ratification of the earlier approval, but an approval with amended conditions flowing directly from renewed consultation,” the court said.
“All very much consistent with the concepts of reconciliation and the honour of the Crown.”
As part of the consultation process, Ottawa sent 60 Crown representatives to meet with 120 Indigenous communities in both Alberta and B.C.
The team gathered thousands of submissions and directed cabinet to impose additional conditions on the project based on the feedback they gathered — which Prime Minister Justin Trudeau and his ministers did in approving the project last year.
No Indigenous veto, says court
“The case law is clear that although Indigenous peoples can assert their uncompromising opposition to a project, they cannot tactically use the consultation process as a means to try and veto it,” the court ruled.
“Canada must act in good faith, but at the same time accommodation cannot be dictated by Indigenous groups.”
The federal government has a constitutional duty to consult and, to the extent it can, accommodate Indigenous peoples before approving major projects on their traditional lands.
I think his government understands there has to be a balance, and we agree. A balance between economic growth and environmental responsibility. We are committed to that.– Alberta Premier Jason Kenney
But the court said those consultations don’t have to be “perfect” and cabinet should be given leeway to design the consultation process. In approving the project, the court said Ottawa balanced Indigenous concerns against “competing societal interests.”
Moreover, the court found that only a small subset of Indigenous communities are actually opposed to Trans Mountain’s construction.
Of the 129 Indigenous groups potentially affected by the project, 120 either support it or do not oppose it, the court found. Meanwhile, 43 Indigenous groups have signed benefit agreements with the proponent.
The four Indigenous groups that launched this legal challenge have 60 days to appeal the Federal Court of Appeal’s decision to the Supreme Court.
Previous consultations a ‘failure’
The consultation do-over was made necessary by a Federal Court of Appeal ruling in August 2018 that concluded consultations to that point had been a “failure.” The court quashed cabinet approvals and directed Ottawa to meet again with Indigenous communities along the route and at the marine terminus near Vancouver.
While Indigenous groups said Ottawa was not consulting in good faith and had pursued these talks with a pre-determined outcome, the Federal Court disagreed.
The court said the flaws identified in its previous ruling were “adequately addressed” and “reasonable and meaningful consultation had taken place.” It said Ottawa mitigated “shortcomings in its earlier consultation process.”
While past Crown consultants were “glorified notetakers,” the second team sent to complete the work engaged in “two-way dialogue,” responded to Indigenous concerns and remedied them by directing cabinet to consider conditions beyond those previously imposed by the regulator, the now-defunct National Energy Board, the court said.
“The evidentiary record shows a genuine effort in ascertaining and taking into account the key concerns of the applicants,” the court said.
For example, the Coldwater Indian Band had concerns about the project’s potential impact on the aquifer from which it draws its drinking water.
The court found Ottawa has made an adequate commitment to the community — a promise to install monitoring wells — to avoid potential problems from a spill. The court said the Canadian Energy Regulator, the successor to the NEB, can make a decision on re-routing the pipeline if it so chooses at the community’s request.
As for marine life concerns, the court found Ottawa has developed a number of programs — including the Co-Developing Community Response program and the Enhanced Maritime Situational Awareness program — to address spill risks.
Cabinet added eight additional “accommodation measures” to address specific Indigenous concerns, including the Salish Sea Initiative to curb the impact of increased tanker traffic on the southern resident killer whale population and the Quiet Vessel Initiative to reduce noise pollution.
During the consultation process, Ottawa also presented the Squamish Nation with additional research about spill response capacities and offered to fund additional research to determine the impact of a bitumen spill on water.
As for the Tsleil-Waututh, that First Nation near Vancouver also argued Ottawa didn’t consider the possibility of a spill. The court found that Ottawa has a “duty to consult” but not a “duty to agree” with the experts the First Nation cited when discussing the impact of such a spill.
This is the second victory for the pipeline and its proponents in the past month. In mid-January, the Supreme Court of Canada ruled the B.C. government could not regulate what flows through an interprovincial pipeline because such projects are wholly within federal jurisdiction.
Kenney welcomes decision
Alberta Premier Jason Kenney praised the decision — and even gave credit to Trudeau for getting the pipeline this far.
“It demonstrates that we do have the rule of law. That decisions can be made, that big projects can be completed,” said Kenney.
“The prime minister has reconfirmed for me, every time we’ve spoken, his government’s commitment to complete this project. They did, after all, end up buying Kinder Morgan’s Trans Mountain project for $4.7 billion, and frankly, we appreciate that.”
“I think his government understands there has to be a balance and we agree, a balance between economic growth and environmental responsibility. We are committed to that.”
Alberta’s opposition leader and former premier, Rachel Notley, also welcomed the decision, saying that while the ruling is a victory that will help Alberta rebuild its economy. She also said Alberta needs to diversify its economy beyond the oilpatch.
The decision “is, of course, very good news for Alberta, very good news for Albertans and of course very good news for all Canadians because the completion of this project ultimately will be important for all Canadians who rely so much on the responsible development of our resource sector,” Notley said.
Indigenous leadership from Squamish, Tsleil-Waututh, Coldwater and a collective of Stó:lō bands expressed their disappointment with the decision saying it was a major blow to the federation’s relationship with Indigenous peoples.
“Reconciliation stopped today,” said Tsleil-Waututh Nation Sundance Chief Rueben George. “This government is incapable of making sound decisions for our future generations so we are, and we will, even for their children, we will take those steps to make sure that Canada stays the way it is.”