Six British Columbia First Nations are getting ready for a “long road ahead”, in the words of Coldwater Indian Band Chief Lee Spahan, after the Federal Court of Appeals agreed this week to hear their legal challenge to the Trans Mountain pipeline expansion.
The court announced Wednesday that it would consider six of 12 appeals that were launched after the Trudeau government re-approved the controversial project in mid-June. Construction along the pipeline route is now under way, with the federal Crown corporation that bought the troubled project from Houston-based Kinder Morgan promising a mid-2022 completion date.
The challenges “are from the same six First Nations that halted the project last year—the Ts’elxwéyeqw tribes, Stk’emlupsemc te Secwepemc Nation, Coldwater Indian Band, Squamish Nation, Tsleil-Waututh Nation, and Upper Nicola Band,” National Observer reports. In its stunning ruling just over a year ago, the court concluded the disgraced (and since replaced) National Energy Board had failed to adequately consult Indigenous communities along the pipeline route. Now, Observer says, “the First Nations argue the government failed again in its second pass.”
In its latest judgement, the court is calling for an expedited review that is strictly confined to whether Ottawa adequately consulted First Nations between August 30, 2018, the date of its previous ruling, and June 19, 2019, the date of the re-approval. “The court has ordered that the challenges proceed on an expedited basis. Short and strict deadlines for the steps in the litigation will be set,” the court said Wednesday in a one-page news release. It set what it acknowledged was an “extremely short”, seven-day turnaround for parties to file their paperwork, stating that “there is a substantial public interest in having the upcoming proceedings decided very quickly one way or the other”.
CBC says the project timeline “could now be in jeopardy” if communities “are again successful in convincing the Federal Court to quash cabinet approvals and nullify construction permits”.
“We are confident that the court will once again decide in our favour,” said Tsleil-Waututh Chief Leah George-Wilson. “Tsleil-Waututh Nation participated in consultation in good faith again, but it was clear that Canada had already made up their mind as the owners of the project. Canada continued to do the legal minimum and, in our view, fell well below the mark again.”
“They’re trying to fast track everything,” Spahan agreed. “They don’t listen to us and they don’t show us the respect that we deserve.”
He added that his community is still waiting for the results of an environmental assessment of how the expanded pipeline will affect the aquifer his community depends on. “How can they approve the pipeline and the study’s not even completed?” he asked. “We use our surrounding territories where our people go to fast, we have ceremonial places where we go… this impacts our ceremony, and harvesting our traditional foods, plants, and our medicine.”
Observer says Tsleil-Waututh has “made a similar argument that the government has not completed a study of how [tanker] traffic noise will affect southern resident killer whales.”
A spokesperson for Natural Resources Minister Amarjeet Sohi countered that the government took “the necessary steps to get this right” in the make-up round of consultations. “We are fully prepared to defend our decision in Court,” said Director of Communications Alexandre Deslongchamps, adding that the talks produced “meaningful two-way dialogue” and “strong environmental protections”.
But the government didn’t defend that position in a Court of Appeals submission. In detailed legal reasons that accompanied its announcement, the court said that weighed on the decision to hear the six appeals.
“In their evidence, consisting of many thousands of detailed pages, the Indigenous and First Nations applicants point with considerable particularity and detail to issues they say were important to them,” wrote Justice David Stratas. “They say the Government of Canada ignored these issues in the original process of consultation and ignored them again in the further consultation process. They add that little or nothing was done in the process of further consultation,” that the talks led by ex-Supreme Court justice Frank Iacobucci were “just window-dressing, box-ticking, and nice-sounding words, not the hard work of taking on board their concerns, exploring possible solutions, and collaborating to get to a better place.”
With no federal response to those concerns, “this court must conclude that the issue of adequacy of the further consultations…meets the ‘fairly arguable’ standard for leave.”
Sohi responded that the government was waiting for “the right time” to make its case. “We want courts to decide who should have the right to appeal and who should not have the right to appeal at all,” he told CBC’s Power & Politics show. “We will be mounting that defence, and at that time we will defend that record. We have a very strong record on these consultations and we responded to every legitimate concern that communities have identified. We have done everything right and I am confident we will continue to proceed. It will be completed by the middle of 2022.”
The Court of Appeals declined to hear challenges from two other First Nations, and from Ecojustice representing the Raincoast Conservation Foundation and the Living Oceans Society. Ecojustice lawyer Margot Venton and Raincoast Executive Director Chris Genovali said they were considering escalating the case to the Supreme Court of Canada.
“Going to the country’s highest court may seem like a drastic measure,” Venton said. “But in the midst of a climate emergency and biodiversity crisis, these are drastic times.” The City of Vancouver, whose application to appeal was also turned down, said it was pleased the six First Nations groups were successful. “The city does not believe the ostensible economic benefits of the project outweigh the unacceptable environmental risks,” the city said in a statement to CBC. “The Government of Canada has also declared a climate emergency, and this project ignores that reality.”