OTTAWA — A federal court judge has rejected claims by several First Nations that federal officials failed to adequately consult with them on the Trans Mountain pipeline, removing a major barrier hanging over the long-delayed project.
Three Federal Court of Appeal justices ruled unanimously to reject claims by Indigenous communities who sought further investigation into Trans Mountain, saying there was “no basis for interfering” with Ottawa’s re-approval of the pipeline. The judges found that federal consultations with Indigenous communities were “reasonable and meaningful.”
“Contrary to what the applicants assert, this was anything but a rubber-stamping exercise,” Justice Marc Noël wrote in his ruling.
The decision on Tuesday notches a win for Prime Minister Justin Trudeau, who approved the project for a second time in June 2019 after an earlier federal court decision halted construction on the pipeline. Few obstructions now remain for the expansion project, after a separate legal challenge against TMX by the B.C. NDP government was tossed out in December.
The decision will be met with widespread relief in Western Canada’s oil and gas industry, where resentments over prolonged legal and regulatory delays have been running high. Years-long delays on major pipeline proposals, including TC Energy’s Keystone XL pipeline and Enbridge’s Line 3 replacement, have caused pipeline shortages that have driven down prices for Canadian crude.
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.
This most recent ruling marks the tail end of what has been a drawn out legal battle.
In August 2018, retired 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 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.
Tuesday’s decision was a review of those consultation efforts. Noël and the other two justices categorized shortfalls in previous Crown consultations as “limited flaws,” 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 aspects of its $1.5-billion Ocean Protection Plan, as reasons to reject the Indigenous appeal.
The Trudeau government purchased the pipeline in 2018 for $4.5 billion after its previous owner, Houston-based Kinder Morgan, threatened to pause all major 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 per 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., the Crown corporation that now operates the pipeline, says 68 per cent of the pipeline’s detailed route has been approved.