Federal Court of Appeal rules in favour of First Nations' challenge against Kinder Morgan pipeline approval
Indigenous peoples have won a major court victory in their efforts to halt the development of a $9.3-billion pipeline project.
Today in a unanimous decision, the Federal Court of Appeal quashed the Trudeau government's approval of the Trans Mountain Pipeline Project, due to shortcomings in the National Energy Board's review and the government's lack of meaningful consultation with First Nations.
The regulator's refusal to consider the impact of pipeline project on endangered southern resident orcas was one of the factors cited in the ruling, which was written by Justice Eleanor R. Dawson.
She wrote that there was an "unjustified failure" to assess the effects of shipping that would result from the project.
This oversight led the NEB to conclude that section 79 of the Species at Risk Act was not worth considering with regard to how the diluted bitumen was going to reach export markets.
This was one of several points raised by the Tsleil-Waututh First Nation in its submissions to the court—as well as by Raincoast Conservation Foundation and the Living Oceans Society.
The completion of the Trans Mountain Pipeline Expansion Project would result in a nearly seven-fold increase in the number of oil tankers—up to approximately 400 per year—travelling through Burrard Inlet and into the Strait of Georgia.
The three-judge panel, including Yves de Montigny and Judith Woods, concluded that "the resulting flawed conclusion about the environmental effects of the Project was critical to the decision of the Governor in Council [cabinet]".
Therefore, the decision stated, the cabinet "could not legally make the kind of assessment of the Project's environmental effects and the public interest that the legislation requires".
"I have also concluded that Canada did not fulfil its duty to consult with and, if necessary, accommodate the Indigenous applicants," Dawson wrote.
A significant portion of the decision outlined how the federal government fell short of its legal obligations in this regard.
For example, the Tsleil-Waututh's raised "valid concerns" about the project's impact on its title and rights.
"While Canada strove to understand those concerns accurately, it failed to respond to them in a meaningful way and did not appear to give any consideration to reasonable mitigation or accommodation measures, or to returning the issue of Project-related shipping to the Board for reconsideration," Dawson concluded.
According to the ruling, the Squamish Nation received a "generic response" to its concern about how diluted bitumen would behave in an oil spill. This was "not a meaningful response".
The Syilx Nation in the Upper Nicola region had a strong prima facie claim to Aboriginal title and rights. It maintained that the pipeline would "render 16,000 hectares of land unusable or inaccessible for traditional activities".
The Trudeau government, however, asserted that the pipeline would have a "minor-to-moderate impact".
"Missing is any explanation as to why moderate impacts to title required no accommodation beyond the environmental mitigation measures recommended by the board—mitigation measures that were generic and not specific to Upper Nicola," the judge wrote.
The Syilx Nation proposed potential mitigation measures and sought accommodation "related to stewardship, use and governance of the water".
"No response was given as to why Canada rejected this request," the judgement declared. "This was not meaningful, two-way dialogue or reasonable consultation."
Moreover, Canada's constitutional analysis made no mention of the "Stó:lō’s constitutionally protected right to fish", let alone how that was being addressed.
"This is not meaningful, two-way dialogue in response to Stó:lō’s real and valid concerns about matters of vital importance to the Stó:lō," Dawson stated.
The First Nations also objected to "extremely restricted" timelines, not being allowed to cross-examine witnesses before the NEB, and the NEB's generic findings, which prevented them from determining the effect of the decision in their communities.
The panel of judges found that the Crown Consultation Report and its appendices did not include any "substantive and meaningful response to these concerns".
The First Nations were only given two weeks to respond to the second draft of the Crown Consultation Report, according to the ruling.
"There is no evidence that Canada considered granting the requested extension so that the Indigenous groups could provide detailed, thoughtful comments on the second draft of the Crown Consultation Report, particularly on Canada’s assessment of the Project’s impact," Dawson wrote. "Nor does the record shed any light on why Canada did not consider granting the requested extension."
The complete decision is available here.