Appeal Court Rejects First Nations’ Trans Mountain Challenge

The Tsleil-Waututh, Squamish, and Coldwater First Nations vowed yesterday to continue their fight after the Federal Court of Appeal unanimously rejected their challenge to the federal cabinet’s re-approval of the Trans Mountain pipeline expansion.

“Reconciliation stopped today,” said Tsleil-Waututh Nation Sundance Chief Rueben George. “This government is incapable of making sound decisions for our future generations—even for their children. So we are and we will.”

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The communities now have 60 days to seek leave to appeal the decision to the Supreme Court of Canada, CBC reports. The Supreme Court is still considering whether to hear a separate appeal of the same project by the Tsleil-Waututh, the Squamish, and three environmental groups.

“There are two potential options when it comes to the Supreme Court,” said Squamish Nation councillor and spokesperson Khelsilem. In addition to legal and intergovernmental hurdles still facing the pipeline, “it’s important to recognize that B.C. has a long history of civil disobedience when it comes to environmental issues. There have been instances in B.C.’s history where hundreds of people were willing to face arrest.”

“Without a doubt we will see an increase in land defenders,” said Chief Don Tom, on behalf of the Union of B.C. Indian Chiefs.

Ahead of yesterday’s decision, the three nations and a collective of bands within the Sto:lo Nation “squared off against the federal government in the Federal Court of Appeal in December, arguing that Ottawa failed, again, to conduct meaningful consultations with them about the expansion and that the project should be cancelled,” CBC recalls. But the panel of three judges “dismissed their appeals, finding there was no basis for the court to interfere in the federal re-approval decision.”

“This was anything but a rubber-stamping exercise,” the appeal court said. “The end result was not a ratification of the earlier approval, but an approval with amended conditions flowing directly from renewed consultation,” an outcome that was “all very much consistent with the concepts of reconciliation and the honour of the Crown.”

CBC says the court concluded that, of the 129 Indigenous groups that could be affected by the pipeline, “120 either support it or do not oppose it,” and 43 have signed impact and benefit agreements with Trans Mountain.

“The case law is clear that although Indigenous peoples can assert their uncompromising opposition to a project, they cannot tactically use the consultation process as a means to try and veto it,” the judges wrote in their ruling. “Canada must act in good faith, but at the same time accommodation cannot be dictated by Indigenous groups.”

In the appeal court hearing, CBC says each of the nations “brought forward its own specific arguments, and concerns, about the adequacy and substance of consultation that occurred before Ottawa re-approved the Trans Mountain pipeline expansion,” with “very specific submissions” in areas like drinking water safety, impacts on established fishing rights, oil spill response capacity, and impacts on the southern resident killer whale population. The court said that all amounted to a bid to “impose a standard of perfection” on the consultations.

“If we accepted those submissions, as a practical matter there would be no end to consultation, the Project would never be approved, and the applicants would have a de facto veto right over it,” the ruling said.

CBC has details of the accommodation measures the federal government took in response to communities’ concerns, and the court’s response to them.

But Tsleil-Waututh Chief Leah George-Wilson took issue with the court’s definition of adequate and reasonable. “If we’re talking about reconciliation and protection of the environment, I don’t think reasonable is adequate,” she said. “I think that sets a low bar for reconciliation, and is not reconciliation the most important item on the prime minister’s agenda?”

Alberta Premier Jason Kenney and opposition leader Rachel Notley both welcomed the court decision.

“It demonstrates that we do have the rule of law. That decisions can be made, that big projects can be completed,” Kenney said. “The prime minister has reconfirmed for me, every time we’ve spoken, his government’s commitment to complete this project. They did, after all, end up buying Kinder Morgan’s Trans Mountain project for C$4.7 billion, and frankly, we appreciate that.”

The decision “is, of course, very good news for Alberta, very good news for Albertans, and of course very good news for all Canadians because the completion of this project ultimately will be important for all Canadians who rely so much on the responsible development of our resource sector,” Notley agreed.

“Today’s ruling by the Federal Court of Appeal is deeply disappointing, even if unsurprising,” Sierra Club BC said in a release. “It ignores the climate crisis. It ignores the plight of the threatened southern resident orcas. And it ignores and disrespects Indigenous law itself.”