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Canadian Federal Court Dismisses Case Against Trans Mountain

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Canada’s Federal Court of Appeal dismissed four challenges to the Federal Cabinet’s approval of the Trans Mountain Pipeline Expansion Project on Feb. 4.

The challenges were brought on by four First Nations groups, including the Coldwater Indian Band, Tsleil-Waututh Nation, Squamish Nation, and Ts’elxwéyeqw Tribe, which argued that the Government of Canada’s consultation regarding the pipeline project remained insufficient.

The Trans Mountain Pipeline Expansion Project concerns the expansion of the existing 1,150-km pipeline that runs from Edmonton, Alberta, to Burnaby, British Columbia. New facilities, such as pump stations, tanks and the expansion of an existing marine terminal, are also planned. The project will increase pipeline capacity from 300,000 barrels per day (bpd) to 890,000 bpd.

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The Government of Canada originally approved the Trans Mountain pipeline expansion project in November 2016. After a number of legal challenges and delays, the Government of Canada purchased the pipeline for $4.5 billion in May 2018. In August 2018, the Federal Court ruled that the approval of the project was deficient for two reasons: The environmental assessment supporting it was too narrow, and the Government of Canada failed in its duty to consult with Indigenous peoples about the project.

In response to the court’s decision, the Federal Cabinet sent the matter back to the National Energy Board (NEB) for further consideration on the environmental issues, particularly on the issue of marine shipping. A few months later, the NEB reported to Cabinet and recommended the project be approved with amended conditions.

Also in response to the court’s decision, the Government of Canada consulted further with Indigenous peoples to address the shortcomings in consultation that the court identified. In approving the project, Cabinet decided that the Government of Canada’s duty to consult with Indigenous peoples had been adequately fulfilled. The four First Nations groups mentioned above challenged this decision, but were unsuccessful in their case.

RELATED: Trans Mountain Expansion Overcoming Challenges in Canada

The parties can apply to the Supreme Court of Canada for permission to appeal the Feb. 4 decision, but they must do so with 60 days to do so. Other parties who were refused permission by the court to challenge Cabinet’s decision have already applied to the Supreme Court for permission to appeal from the Court of Appeal’s refusal to hear their challenges. They await a decision from that court.

Trans Mountain president and CEO Ian Anderson responded to the court’s decision.

“We are pleased with the court’s decision to dismiss the applicants’ challenges to the Federal Government’s approval of the Trans Mountain Expansion Project,” Anderson said. “After many years of consultation and review we are pleased to be able to continue moving forward and building the project in respect of communities and for the benefit of Canadians. The Government of Canada’s additional Indigenous consultation represented an immense undertaking by many parties. The government was committed to a specific and focused dialogue with affected Indigenous communities to ensure Canada and the company heard their concerns and responded.”

The Canadian Energy Pipeline Association (CEPA) celebrated the ruling, calling the Trans Mountain Expansion Project “among the safest and most technically advanced pipelines in the world.”

“Today’s decision provides the necessary clarity on the standard of Indigenous consultation that must be met for major projects to proceed,” CEPA president and CEO Chris Bloomer said. “The decision also proves that Canada has the legal and regulatory systems in place to support the development of major infrastructure projects. This ruling is critical for investor confidence to undertake major projects and signals that Canada is, in fact, open for business.”

Following the Federal Court of Appeal’s decision, the Assembly of First Nations (AFN) National Chief Perry Bellegarde said the federal government must ensure that First Nations’ rights, title and jurisdiction are respected.

“First Nations rights and title holders must be respected in all proposed development, and this, of course, includes the Trans Mountain pipeline. Government and industry must do a better job of meaningfully consulting First Nations from the outset of all major projects and respecting First Nations rights in Canadian and international law,” said AFN National Chief Bellegarde.

Regional Chief for British Columbia Terry Teegee said, “Today we see another court decision that is another reminder that the UN Declaration on the Rights of Indigenous Peoples, and free, prior and informed consent are the necessary way forward. Obviously, the process is still flawed. We can replace conflict and court cases with progress, prosperity and stability. ”

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