VANCOUVER – The Federal Court of Appeal has overturned the Trudeau government’s approval of the contentious Trans Mountain pipeline expansion.
In a unanimous decision by a panel of three judges, the court says the National Energy Board’s review of the project was so flawed that the federal government could not rely on it as a basis for its decision to approve the expansion.
The court also concludes that the federal government failed in its duty to engage in meaningful consultations with First Nations before giving the green light to the project.
Prime Minister Justin Trudeau’s government approved the project in 2016 and is so determined to see the line built that it announced plans this spring to buy the pipeline and expansion project for $4.5 billion.
The court ruling requires the energy board to conduct a new review – which the court suggests could be kept short – and means the government will have to redo part of its consultations with Indigenous groups.
The court combined into one case nearly two dozen lawsuits calling for the energy board’s review of Kinder Morgan Canada’s project to be overturned.
First Nations, including the Tsleil-Waututh and Squamish on British Columbia’s south coast, argued that Ottawa did not adequately consult them before the review or the cabinet decision to approve the project.
Lawyers for the federal government told court that Ottawa conducted extensive consultations.
Environmental groups and the cities of Vancouver and Burnaby also challenged the project in Federal Court last fall. They were supported by the province of British Columbia, which acted as an intervener.
Alberta was also an intervener and the province’s lawyer told the court Ottawa’s decision to approve the pipeline expansion was based on broad evidence that considered environmental, economic and Indigenous interests.
The expansion would triple the capacity of the Trans Mountain pipeline from near Edmonton to Burnaby, B.C., to 890,000 barrels a day. It would also increase the number of tankers in Burrard Inlet seven-fold.
The court ruled that the review contained one fatal flaw: it excluded the project’s impact on marine shipping. That, in turn, meant that the energy board did not assess the potential impact of increased tanker traffic on the southern resident killer whale population.
That failure “was so critical that the Governor in Council could not functionally make the kind of assessment of the project’s environmental effects and the public interest that the (environmental assessment) legislation requires,” says the ruling written by Justice Eleanor Dawson.
As for consultations with Indigenous communities, the court found that the government’s representatives “limited their mandate to listening to and recording the concerns of the Indigenous applicants and then transmitting those concerns to the decision-makers.” There was no “meaningful two-way dialogue.”
“The Indigenous applicants were entitled to a dialogue that demonstrated that Canada not only heard but also gave serious consideration to the specific and real concerns the Indigenous applicants put to Canada, gave serious consideration to proposed accommodation measures and explained how the concerns of the Indigenous applicants impacted Canada’s decision to approve the project.”
The Federal Court case was the most significant legal challenge facing the project and the decision may still be appealed to the Supreme Court of Canada.
Representatives from the Squamish and Tsleil-Waututh along with other First Nations spokespeople were expected to comment on the ruling at a media event.
Kinder Morgan had already won several court victories, including one last week when the Supreme Court of Canada dismissed an application from the City of Burnaby to overturn a lower court decision.