Court orders Canadian govt to redo consultation with First Nations, reconsider tanker impact on killer whales

In a stunning decision released Thursday morning, the Federal Court of Appeal has overturned the Canadian government’s approval of the Trans Mountain Expansion pipeline project. The court based its verdict on the National Energy Board’s decision to exclude the environmental effects of marine shipping and inadequate consultation with First Nations.

Trans Mountain Expansion

Protest leader Reuben George, right, speaks to approximately 7,000 protestors crowd gathered at the Lake City Skytrain Station in Burnaby, BC.

While all of the claims made by the applicants about the procedural fairness of the review were dismissed “the Board made one critical error” according to the justices:

“The Board unjustifiably defined the scope of the project under review not to include project-related tanker traffic. This exclusion permitted the Board to conclude that, notwithstanding its conclusion that the operation of project-related marine vessels is likely to result in significant adverse effects to the Southern resident killer whale, the project was not likely to cause significant adverse environmental effects.”

The federal cabinet must now direct the NEB to reconsider its recommendation and direct it to report back in a timely fashion.

The second flaw was the Canadian government’s failure to meet the requirements for aboriginal consultation set out in Sect. 35 of the Constitution Act.

The court believes the government acted in good faith and formed an acceptable plan for consultation, but during the last of three phases (a three-member panel chaired by former Tsawassen Nation chief Kim Baird appointed in 2016) the implementation fell well short of required standards.

The Government of Canada was required to engage in a considered, meaningful two-way dialogue. However, for the most part, Canada’s representatives limited their mandate to listening to and recording the concerns of the Indigenous applicants and then transmitting those concerns to the decision-makers. On the whole, the record does not disclose responsive, considered and meaningful dialogue coming back from Canada in response to the concerns expressed by the Indigenous applicants. The law requires Canada to do more than receive and record concerns and complaints.

The court’s decision notes that the federal government is not held to a “standard of perfection,” but it still failed to engage meaningfully with the “real concerns of the Indigenous applicants” or “explore possible accommodation of those concerns.”

The judgement requires Canada to redo Phase III of the consultation process, which could be a serious impediment to the already delayed project. The Trudeau Government was forced to enter into an agreement to buy Trans Mountain Expansion, as well as most of proponent Kinder Morgan’s Canadian assets, for $4.5 billion in order to overcome the political and legal obstructions by the BC and Burnaby governments and a number of coastal First Nations who are fiercely opposed to construction.

The concerns of the indigenous communities are “specific and focussed” and that means Canada’s dialogue with the First Nations can also be specific and focussed to “make the corrected consultation process brief and efficient while ensuring it is meaningful.”

This would lead to “only a short delay in the project,” according to the decision.

The 590,000 b/d pipeline project that would mostly follow the existing right of way from the Edmonton, Alberta area to the Westridge Terminal in Burnaby, BC has been highly controversial since it was proposed in 2013. In April, court challenges and political opposition from the BC and municipal governments led Kinder Morgan to impose an end of May deadline for to resolve inter-governmental disputes over jurisdiction. When that proved impossible, the federal government was forced to buy the project, which Prime Minister Justin Trudeau has consistently declared “will be built.”

Energi News will be following this story throughout the day, providing reaction from interested parties and comment from a variety of experts.