Federal Court dismisses First Nations’ challenges to TMX pipeline project

OTTAWA — The Federal Court of Appeal has dismissed legal objections to Ottawa’s decision to approve the Trans Mountain pipeline expansion a second time.

In a 3-0 decision, the court rejected four challenges from First Nations in British Columbia to the approval, which were filed last summer. The 95-page ruling says there is no legal basis to interfere with the federal cabinet’s approval of the project.

That means construction can continue on the project, though the First Nations have 60 days to appeal to the Supreme Court.

Natural Resources Minister Seamus O’Regan said the government welcomes the ruling and believes it proves that if consultations and reviews are done properly, major projects can be built in Canada.

“This has worked out well,” he said.

“The courts have acknowledged that we listened and that we want to do things right.”

Chief Lee Spahan of the Coldwater Indian Band said in a statement an appeal to the Supreme Court is under consideration. He also said his band must still be consulted on the route the expansion will take, with the approved route passing an aquifer that is the only source of drinking water for 320 people living on the main Coldwater reserve.

The band wants the route moved away from the aquifer.

The cabinet originally approved the expansion project, to twin the existing pipeline, in November 2016. Prime Minister Justin Trudeau said at the time it was in Canada’s national interest to build the project, which will provide oilsands producers more transportation capacity to get their products to market.

That approval was overturned by the Federal Court of Appeal in August 2018, citing an insufficient consultation process with Indigenous communities and a failure to properly take into account the potential impact on marine life from additional oil tankers off the B.C. coast. Ottawa then launched another round of consultations with Indigenous communities and asked the National Energy Board to look at marine life.

In June 2019, cabinet issued its second approval for the project. Following that, the Coldwater Indian Band, Squamish Nation, Tsleil-Waututh and a group of small First Nations in the Fraser Valley asked the court to review the decision a second time. The court refused to hear a challenge from environment groups seeking a review of the decision on environmental grounds but agreed to go ahead with the First Nations case.

In a December hearing, lawyers for the bands argued the government went into the new consultations having predetermined the outcome.

But the judges said “this was anything but a rubber-stamping exercise.”

“The end result was not a ratification of the earlier approval, but an approval with amended conditions flowing directly from the renewed consultations,” the ruling said.

The judges found the government made a genuine effort, listened to and considered concerns raised by First Nations, and sometimes agreed to accommodate those concerns, “all very much consistent with the concepts of reconciliation and the honour of the Crown.”

They also say while it is true not all the concerns raised were accommodated, “to insist on that happening is to impose a standard of perfect,” that is not required by law.

“We particularly appreciate the clarity in the decision that the duty to consult does not equal a veto,” Alberta Premier Jason Kenney said in a statement. He said most Canadians and most First Nations “want to share in the economic benefits of responsible resource development” and “it’s time to get this pipeline built.”

O’Regan acknowledged there will be people unhappy with the court’s judgment and any outstanding concerns they have will not be ignored.

“I want to say clearly to those who are disappointed with today’s court decision: we see you and we hear you,” he said. “As construction continues to move forward we will take every step that we can to ensure that this project moves forward in the right way.”

The expansion project would triple the capacity of the existing pipeline between Edmonton and a shipping terminal in Burnaby, B.C., with the new pipeline carrying mainly diluted bitumen for export.

It has become a political challenge for Trudeau as he insists Canada can continue to expand oil production and still meet its commitments to cut greenhouse gas emissions.

Trudeau’s government bought the existing pipeline and the expansion plan in 2018 after political opposition to the project from the B.C. government caused Kinder Morgan Canada to pull out from building the expansion. The government intends to finish the expansion and then sell both the existing pipeline and the expansion back to the private sector.

It has been in talks with some Indigenous communities about the sale but Finance Minister Bill Morneau has said the project won’t be sold until all the risks about proceeding are eliminated. Those risks include this court case.

Morneau said Tuesday the government still expects about $500 million in revenues each year once the pipeline is up and running, all of which will be put towards clean technology and energy projects.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Alberta has 3,651 active cases of COVID-19. (File photo)
432 new COVID cases sets another record Friday

Central zone holds steady at 126 active cases

A Red Deer County man was arrested for drug possession by Innisfail RCMP on April 19. (File photo by Advocate staff)
Property crime and drugs top Red Deer RCMP priorities in new plan

2020-2022 Policing Priorities Plan going to city council on Monday

RCMP estimate about 500 people gathered on the weekend near Garrington Bridge along the Red Deer River, in a July 28, 2020 story. (File photo by Advocate staff)
Second person charged for alleged assault at anti-racism rally in Red Deer

A second person is facing charges following an alleged assault during an… Continue reading

Alberta Union of Provincial Employees vice-president Bonnie Gustola criticized provincial government layoffs at a rally that drew more than 80 people at City Hall Park on Friday.
Photo by PAUL COWLEY/Advocate staff
More than 80 rally in Red Deer against government health, education cutbacks

Rally at City Hall Park organized by the Council for Canadians

The higher the education level, the higher the income of some 1.3 million post-secondary graduates surveyed between 2010 and 2015, with master's degrees paying off the most. But the findings also suggest that gender and timing matter. (Black Press Media File).
2020 high school grads won’t get their ceremony

Decision announced by Lindsay Thurber and Hunting Hills high schools, and Gateway Christian School

B.C. Liberal leader Andrew Wilkinson, B.C. NDP leader John Horgan and B.C. Greens leader Sonia Furstenau. (Black Press Media)
VIDEO: One day until B.C. voters go to the polls in snap election defined by pandemic

NDP Leader John Horgan’s decision to call an election comes more than a year ahead of schedule and during a pandemic

Alice Kolisnyk, deputy director of the Red Deer Food Bank, says the agency expects an increase in demand as the COVID-19 pandemic continues. Every new subscription to the Red Deer Advocate includes a $50 donation to the food bank. (Photo by BYRON HACKETT/Advocate Staff)
Support the food bank with a subscription to the Red Deer Advocate

The community’s most vulnerable members are always in need of a hand,… Continue reading

New voluntary measures, including the encouragement of more mask wearing, have been introduced in the Edmonton health zone. “Red Deer has been very fortunate to have relatively low case numbers . . . relative to the rest of the province and the country,” says Mayor Tara Veer. THE CANADIAN PRESS/Graham Hughes
POLL: Should Alberta have stricter rules to help prevent the spread of COVID-19?

Should Alberta have stricter rules to help prevent the spread of COVID-19?… Continue reading

Police in Ottawa are investigating an incident of hate-motivated graffiti at the National War Memorial. The alleged incident happened last Friday night, when police say a man, shown in a police handout photo, used a sharp object to engrave a hateful message on the Tomb of the Unknown Soldier. THE CANADIAN PRESSS/HO-Ottawa Police Service MANDATORY CREDIT
Ottawa police investigating hate-motivated graffiti incident at National War Memorial

Ottawa police investigating hate-motivated graffiti incident at National War Memorial

Indigenous fisherman Robert Syliboy stands on the wharf in Saulnierville, N.S. on Wednesday, Oct. 21, 2020. Tensions remain high over an Indigenous-led lobster fishery that has been the source of conflict with non-Indigenous fishermen. THE CANADIAN PRESS /Andrew Vaughan
For Mi’kmaq fishers, dreams of a peaceful harvest on N.S. waters repeatedly dashed

For Mi’kmaq fishers, dreams of a peaceful harvest on N.S. waters repeatedly dashed

RCMP Commissioner Brenda Lucki speaks during a news conference in Ottawa, Wednesday October 21, 2020. Perry Bellegarde, national chief of the Assembly of First Nations, says he is set to tell Prime Minister Justin Trudeau he has 'lost confidence' in RCMP Commissioner Lucki. THE CANADIAN PRESS/Adrian Wyld
Bellegarde wants Brenda Lucki out as head of RCMP

Bellegarde wants Brenda Lucki out as head of RCMP

This image released by CBS All Access shows Dan Illescas, left, and Tracey Stabile of the Central Texas Pig Rescue in a scene from the CBS All Access docuseries "That Animal Rescue Show." (Danny Matson/CBS All Access via AP)
Animals, people rescue each other in heartfelt docuseries

Animals, people rescue each other in heartfelt docuseries

Ryen Williams, 11, with a lost miniature horse at JJ Collett Oct. 23. Photo by Don Williams
UPDATE: Owners found

Father and son found him while out for a walk at JJ Collett

Red Deer Rebels forward Jaxsen Wiebe scores his sixth goal of the WHL season in the first period against the Tri-City Americans on Saturday night at the Centrium. (Photo by BYRON HACKETT/Advocate Staff)
WHL grants players temporary transfer until mid-December

Players are eligible to suit up in Junior A, Junior B and U-18 ranks

Most Read