In a unanimous ruling, three B.C. Court of Appeal justices have granted a Squamish Nation appeal—to a "limited extent"—involving the Trans Mountain pipeline expansion.
The First Nation and Chief Ian Campbell were seeking an order to set aside a decision by two former B.C. Liberal cabinet ministers to issue an environmental assessment certificate for the project.
Justices Mary Saunders, Daphne Smith, Harvey Groberman did not quash the certificate.
However, they allowed the Squamish Nation to "remit conditions" to the current NDP government "for reconsideration and consequent adjustment".
In response to the ruling, the Squamish Nation has insisted that it's "deeply committed" to ensuring that the federal and provincial governments respect Indigenous rights.
"Premier [John] Horgan and his government need to set the bar higher and rethink their approach to the TMX project, and truly respect Indigenous rights by jointly reviewing with the Squamish Nation and other concerned First Nations whose territories would be directly impacted by the pipeline expansion," Squamish Nation council member Khelsilem said in a statement. "There's a lot of talk of reconciliation at the provincial level, and this is a critical opportunity for the province to put its words into action."
The reasons for judgment were written by Saunders. She stated that the Squamish Nation is entitled to outline the conditions in light of a reconsideration report by the National Energy Board.
This report was written after the NEB's original findings were quashed by the Federal Court of Appeal in 2018.
"In Tsleil-Waututh, the Federal Court of Appeal identified deficiencies in the federal process in two areas of concern, one being the National Energy Board’s assessment of the risks inherent to marine shipping and certain environmental effects of the Expansion Project, and the second being the adequacy of Canada’s consultation process with Indigenous groups in respect to its decision to approve the Project," Saunders wrote. "The National Energy Board, after further process, issued its Reconsideration Report on February 22, 2019, again recommending approval of the Project."
The Squamish Nation's appeal solely concerned the province's permitting scheme in connection with the project. If it's completed, it will triple shipments of diluted bitumen from Alberta to the West Coast to 890,000 barrels per day and result in a huge increase in oil-tanker traffic in the Salish Sea.
The Squamish Nation and Campbell argued that the province failed to meet its legal requirements to consult, citing a 2004 Supreme Court of Canada case involving the Haida Nation.
This argument was resisted by the B.C. government and Trans Mountain Pipeline ULC. And the judges sided with them on this point.
"Squamish’s submission, in my respectful view, wrongly equates the 'scope' of the Province’s constitutional jurisdiction with the depth of consultation required," Saunders wrote. "Any consultation with the Province could only be effective on matters within the Province’s jurisdiction to act, and the statement in Haida Nation at para. 39 concerning the depth of consultation is not a statement requiring the Province to address issues beyond its constitutional capacity.
"On my reading of the reasons for judgment, and the passages particularly noted by Squamish and replicated above in para. 69, the judge was doing no more than stating the obvious context of the Province’s proper consultation with Squamish," she continued. "By limiting consultation to matters within its jurisdiction, the Province was not diminishing the depth of attention such matters attracted at the consultation table, which it recognized as 'deep'. Rather it was applying itself to the matters it considered it could address through conditions."
According to a report commissioned by the City of Vancouver, the downstream emissions from the Trans Mountain project will exceed 71 million tonnes of carbon dioxide equivalents per year. That's more than the entire output of greenhouse gases each year in British Columbia.