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Federal Court of Appeal dismisses application challenging approval of Trans Mountain pipeline

The Federal Court of Appeal rejected claims by several First Nations that federal officials failed to adequately consult with them on the Trans Mountain pipeline, removing the final major barrier hanging over the long-delayed project.

Tuesday’s decision, which struck a starkly different tone than a 2018 ruling, also sought to establish a firm line against Indigenous claims that they should have a veto over major natural resource projects deemed to be in the public interest.

The judges ruled that “reconciliation does not dictate any particular substantive outcome” on a given resource project. They wrote that requiring a “perfect” level of consultation would in turn create a kind of de facto veto on major projects, and said First Nations “cannot tactically use the consultation process as a means to try to veto it.”

“Canada was under no obligation to obtain consent prior to approving the Project,” the judges wrote. “That would, again, amount to giving Indigenous groups a veto.”

Alberta Premier Jason Kenney lauded the “historic and critical decision,” saying it built upon a string of legal and regulatory announcements in recent weeks that have been supportive of major pipeline projects.

“It’s a great day for Canada because it demonstrates that the vast majority of Indigenous groups will not have their voices ignored. It demonstrates that we do have the rule of law, that decisions can be made, that big projects can be completed,” he said.

“TMX will result in billions of dollars of economic prosperity for Canadians.”

Few obstructions now remain for the Trans Mountain expansion project, after the Supreme Court of Canada ruled against the B.C. government in January, rejecting its bid to block the flow of heavy oil through the province. B.C. Premier John Horgan acknowledged after the decision that “the courts have determined that the project is legitimate and should proceed,” suggesting he would end his fight against the pipeline.

Then, on Monday, a key regulatory body in Minnesota approved a revised environmental assessment put forward by Enbridge on its Line 3 replacement line, which has also met delays. The replacement project would add around 370,000 barrels per day of capacity leading from Alberta to Wisconsin.

Applicants against Trans Mountain included the Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band and a coalition of small First Nations in the Fraser Valley. The Indigenous applicants provided a spirited rebuke of the pipeline, filing over 60,000 pages of evidence that sought to overturn its approval.

However, on Tuesday three judges ruled unanimously that there was “no basis for interfering” in Ottawa’s second approval of the pipeline, and found that federal consultations with Indigenous communities were “reasonable and meaningful.”

“The evidentiary record shows a genuine effort in ascertaining and taking into account the key concerns of the applicants, considering them, engaging in two-way communication, and considering and sometimes agreeing to accommodations,” the court’s three-judge panel wrote.

“Contrary to what the applicants assert, this was anything but a rubber-stamping exercise,” Justice Marc Noël wrote in his ruling.

The decision marks the tail end of what has been a drawn out legal battle.

In August 2018, justice Eleanor Dawson overturned Ottawa’s approval of the expansion project, ruling that Crown officials had failed to properly consult with Indigenous communities, and that their discussions lacked “meaningful two-way dialogue.”

The decision also ruled that the national energy regulator had erred in its failure to consider a report on marine impacts in its final recommendation to cabinet.

The decision immediately halted construction, and forced former natural resources minister Amarjeet Sohi to conduct months-long consultations with the 129 First Nations communities that reside along the proposed pipeline route. The government also reapproved the expansion in June 2019.

Tuesday’s decision was a review of those consultation efforts. Noël and the other two justices categorized shortfalls in previous Crown consultations as “limited,” and said the government’s argument in favour of the re-approval “did not suffer from errors in reasoning or logical deficiencies” of the sort identified in previous court challenges.

It said government officials “looked at the issue of Canada’s compliance with the duty to consult afresh” in the second round of negotiations.

They also listed a host of public programs introduced by the Liberals, including certain marine safety programs and other measures, aimed at making oil transport in the Salish Sea more immune to accidents.

Natural Resources Minister Seamus O’Regan applauded the decision. “Ministers engaged directly, project conditions were amended and accommodations were co-developed to respond to concerns raised,” he said in a written statement. “The result was the most comprehensive consultation ever undertaken for a major project in Canada’s history.”

He said the ruling shows that “if consultations are meaningful and in good faith … you get stuff done” in Canada.

Four indigenous groups had alleged that Ottawa listened half-heartedly to concerns, which include potential spills and harm to endangered killer whales.

“Our work is not done,” said Chief Leah George-Wilson of Tseil-Waututh Nation. “We’re going to feel the disappointment today, but that isn’t going to define us and stop us.”

The Trudeau government purchased the pipeline in 2018 for $4.5 billion after its previous owner, Houston-based Kinder Morgan, threatened to pause investment in the expansion amid legal challenges in B.C. The expansion would nearly triple capacity of the pipeline, transporting 890,000 barrels of oil every day from northern Alberta to a port near Vancouver. Kinder Morgan first applied to build the conduit in 2012.

Last week the Canada Energy Regulator announced that it would re-commence detailed route hearings for the project. Trans Mountain Corp says 68 per cent of the pipeline’s detailed route has been approved, while construction is underway in two critical sections of the pipeline.

The firm will also still need to secure a number of minor regulatory certificates before it can fully complete the project. The pipeline is now expected to come online in 2022.

Note: This a reprint of an article by Jesse Snyder appearing in the Star Phoenix.