Court quashes Canadian approval of Trans Mountain oil pipeline

Audrey Hill
September 1, 2018

The Federal Court of Appeal is expected to release a judgment today on whether the federal government adequately consulted First Nations on the contentious Trans Mountain pipeline expansion.

The ruling by the Federal Court of Appeal quashed the National Energy Board's (NEB) approval permit of the Trans Mountain pipeline expansion project because First Nations had not been adequately consulted and because the implications of increased tanker traffic on the precarious orca whale populations on the West Coast had not been taken into account.

The court decision cited the Trudeau government's failure to consult with Canada's First Nations.

To that end, the federal government bought the project for $4.5 billion when owner Kinder Morgan Canada wavered this spring.

A workman walks past steel pipe to be used in the oil pipeline construction of Kinder Morgan Canada's Trans Mountain Expansion Project at a stockpile site in Kamloops, British Columbia, Canada May 29, 2018.

"My sense of it would be that the federal government should get on with the proper consultation and view this as a delay", he said.

The 2018 provincial budget forecasted a debt load that would balloon to $96 billion by 2023 from $54 billion this year.

Shortly after the loss in court, Canada got one step closer to purchasing the existing pipeline and expansion project, from Texas-based Kinder Morgan. "The court has stepped in where Canada has failed to protect and respect our rights and our water".

And each faces resistance from environmental groups and others who contend the projects pose too many risks and would exacerbate climate change.

"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 ruling stated.

Tsleil-Waututh Nation was the first to launch a legal challenge of the NEB review of the pipeline and tanker project.

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Some provinces are fighting the federal climate plan in court; the provincial government of Saskatchewan says it will not submit its plan for the federal government to review, and earlier this summer it filed a constitutional reference to Saskatchewan's Court of Appeal to ask whether Ottawa has the right to impose various taxes on jurisdictions.

A ruling in the Indigenous groups' favour would be likely to kill the multibillion-dollar pipeline expansion that Canada has offered to purchase, said George Hoberg, a public policy professor at the University of British Columbia, in an interview before the decision was announced.

The federal court said that during the NEB permit process, Canada acted in "good faith" when consulting but later fell "well short of the mark" in properly consulting First Nations during the third and final stage.

"Going forward, we urge politicians and other project proponents to shift their focus away from projects that lock us into dependence on fossil fuels", Ecojustice lawyer Dyna Tuytel said.

A few hours after the ruling, Notley announced Alberta will withdraw its support for the carbon pricing scheme.

"We need to look at ensuring that environment oversight is absolutely paramount and a cornerstone of any project development across this country".

Canada's Finance Minister Bill Morneau said the pipeline was in the national interest.

"The unjustified exclusion of marine shipping from the scope of the project led to successive, unacceptable deficiencies in the [NEB's] report and recommendations".

"They keep moving the goalposts on what is required", said Kenney. Canada's oil industry says it needs the new pipeline to be able to export oil to Asia.

Two options include challenging Thursday's decision in the Supreme Court of Appeal or attempting to satisfy the court's demands, which would include redoing the consultation process with Indigenous people and assessing the marine impacts.

Other reports by MaliBehiribAe

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