The Federal Court of Appeal has dismissed the most recent challenge to the federal government’s approval of the Trans Mountain Pipeline Expansion Project.
In a decision released on Tuesday, the Court said it focused on the reasonableness of Cabinet’s decision to approve the Project a second time, specifically Cabinet’s conclusion that the Government of Canada had remedied the flaws in consultation earlier identified by the Court and had engaged in adequate and meaningful consultation with Indigenous peoples.
“The Court found this to be a reasonable conclusion based on, among other things, the evidence in the record, the law concerning the duty to consult, the legislation governing project approvals and the justification offered by Cabinet for its conclusion,” said the Court.
“The Court found that the decision approving the Project was not a ratification of the earlier approval, but an approval with amended conditions flowing directly from renewed consultation. The Court’s conclusion was that there were no legal grounds for setting aside Cabinet’s decision. While the parties challenging Cabinet’s decision are fully entitled to oppose the Project, reconciliation and the duty to consult do not provide them with a veto over projects such as this one. Although the Court found it unnecessary to go beyond upholding the reasonableness of Cabinet’s decision, the Court reviewed the detailed arguments of the parties, including their arguments on the adequacy of the renewed consultation. It found that the arguments failed on their own terms or concerned matters that were litigated or could have been litigated in earlier proceedings and, thus, were not properly before the Court.”
The Court said the parties can apply to the Supreme Court of Canada for permission to appeal the decision and they have 60 days to do so. Other parties who were refused permission by this Court to challenge Cabinet’s decision have already applied to the Supreme Court for permission to appeal from this Court’s refusal to hear their challenges. They await a decision from that Court, it said.
The challenges to the Federal Court of Appeal were presented by Coldwater Indian Band, Squamish Nation, Tsleil-Waututh Nation and the Ts’elxwéyeqw Tribe, a collective of seven Stó:lō villages.
The Trans Mountain Pipeline Expansion Project includes the expansion of the existing 1,150- kilometre pipeline that runs from Edmonton to Burnaby, British Columbia. New works, 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 to 890,000 barrels per day. It also will cause environmental effects and affect the interests of certain Indigenous peoples. The governing law requires the federal Cabinet to approve a project such as this before it can proceed. In November 2016, Cabinet approved the Project, explained the Court in its decision.
“This is a victory for common sense and the rule of law. We are pleased the Federal Court of Appeal made a fair decision. This ruling confirms what we’ve known all along: the Trans Mountain expansion project has been held to the highest standard at every turn,” said Alberta Premier Jason Kenney in a statement. “Now that this legal hurdle has been cleared, there is absolutely no denying that it’s time to get this pipeline built. TMX will result in billions of dollars of economic prosperity for Canadians and create well-paying jobs throughout the country.
“While we respect the opinion of those who have voiced opposition to the project, the fact is the majority of First Nations communities – and the majority of Canadians – want to share in the economic benefits of responsible resource development. That’s demonstrated by the 58 mutual benefit agreements that Trans Mountain has signed with Indigenous communities across Alberta and British Columbia.
“We particularly appreciate the clarity in the decision that the duty to consult does not equal a veto. This marks an important milestone for TMX, but we won’t get ahead of ourselves. Completion of construction remains the one true measure of success. We will hold our celebrations until oil is flowing through the pipeline. Our government will continue to stand up for Alberta by advocating for increased market access and protecting the value of our energy exports to grow our economy and create jobs.”
Seamus O’Regan, Minister of Natural Resources for the federal government, issued the following statement:
“The Government of Canada welcomes the decision of the Federal Court of Appeal (FCA). Today’s ruling affirms that the Government of Canada’s renewed consultations with Indigenous communities addressed the issues identified by the Federal Court of Appeal in its August 2018 decision. This was a responsibility the Government of Canada took very seriously, and it is work the government did in partnership with Indigenous communities,” he said. “From the beginning, the Government of Canada worked with communities to shape the consultation process. Ministers engaged directly, project conditions were amended and accommodations were co-developed to respond to concerns raised. The result was the most comprehensive consultation ever undertaken for a major project in Canada’s history.
“The government approved the Trans Mountain Expansion Project because it is in the public interest. This project will unlock new global markets to boost the price of a valuable Canadian resource; help advance reconciliation with Indigenous peoples, including through economic opportunities; and generate revenue to help fund clean energy and climate solutions. Since the fall, construction of the project has already created thousands of good, well-paying jobs. Construction on both Spread 1 in the Greater Edmonton Region and Spread 2 in Yellowhead is underway. Work is ongoing at various pump stations, construction yards, and more.
“The Government of Canada is committed to a renewed relationship with Indigenous peoples, and it knows that consultations on major projects have a critical role to play in building that renewed relationship. Canada will continue to engage with Indigenous communities at each step of the project in the months and years to come.”
Chris Bloomer, President and CEO of the Canadian Energy Pipeline Association, issued the following statement:
“The Canadian Energy Pipeline Association (CEPA) is pleased with today’s court decision to dismiss the appeal challenging the federal government’s approval of the Trans Mountain Expansion Project (TMEP). This project, which will be among the safest and most technically advanced pipelines in the world, has been the subject of extensive Crown-led Indigenous consultations and has met an unprecedented number of stringent regulatory requirements,” he said.
“Today’s decision provides the necessary clarity on the standard of Indigenous consultation that must be met for major projects to proceed. 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. We look forward to TMEP being in operation as soon as possible.”
Mario Toneguzzi is a business reporter in Calgary.
The views, opinions and positions expressed by columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of our publication.
