Indigenous challenge to Trans Mountain pipeline dismissed

Montreal, Canada – Canada’s Federal Court of Appeal on Tuesday dismissed a challenge to a contentious, multimillion-dollar oil pipeline, effectively giving the Trans Mountain expansion project the green light to move forward.

In its unanimous decision, the court said the government’s consultation process with Indigenous groups “was anything but a rubber-stamping exercise”.


The legal challenge centred around whether Canada had adequately consulted with a handful of Indigenous groups along the 1,150km (715-mile) Trans Mountain route. Some of those groups had raised concerns about the project’s effects on the environment and their rights.

“The evidentiary record shows a genuine effort in ascertaining and taking into account the key concerns of the applicants, considering them, engaging in two-way communication, and considering and sometimes agreeing to accommodations,” the court said. “It is true that the applicants are of the view that their concerns have not been fully met, but to insist on that happening is to impose a standard of perfection, a standard not required by law.”

The Trans Mountain pipeline runs tar sands oil from Edmonton, Alberta, to a terminal on the British Columbia (BC) coast.

Trans Mountain Pipeline

The $5.6bn ($7.4 billion Canadian) expansion project, which Ottawa purchased in 2018 and approved in June 2019 amid widespread opposition, would see the pipeline’s capacity nearly triple to as many as 890,000 barrels of oil per day.

In December, the Federal Court of Appeal heard from four Indigenous groups who said they were not adequately consulted by the government between August 2018 and June 2019.

The Squamish and Tsleil-Waututh nations, the Coldwater Indian Band, and a coalition of smaller Indigenous nations from the BC interior said their concerns about the project’s impact on their way of life and the environment were not meaningfully considered.

They also raised fears that an increase in tanker traffic off the BC coast near Vancouver – from where the oil will be exported abroad – could lead to a spill.

Government welcomes decision

The Trans Mountain project has been a major source of contention with Indigenous leaders, environmental groups and politicians at the federal, provincial and municipal levels coming out in opposition to the pipeline.

Canada has what is called a “duty to consult” Indigenous groups when their rights may be affected by resource development projects.

The Federal Court of Appeal in August 2018 overturned an earlier approval of the project after it found that the government had “failed to meaningfully engage” with Indigenous groups.

But in its decision on Tuesday, the court said it rejected the Indigenous applicants’ submissions, which it said “essentially [posited] that the project cannot be approved until all of their concerns are resolved to their satisfaction.”

“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 court said.

The Indigenous groups involved in the case will have 60 days to appeal to the Supreme Court of Canada.
They will hold a press conference at noon PST (8pm GMT) on Tuesday to respond to the ruling.

Prime Minister Justin Trudeau has insisted that the Trans Mountain pipeline is in the best interests of all Canadians, and he has pledged to use the revenue generated by the pipeline to help “transition to a clean economy”.

His government welcomed the court’s decision on Tuesday.

“I think what the court’s decision says is that if you go about things the right way, if consultations are meaningful and in good faith and you roll up your sleeves and you do the work and listen … you can get stuff done,” Seamus O’Regan, Canada’s minister of natural resources, told reporters.

The ruling was also celebrated by right-wing Alberta Premier Jason Kenney, a top backer of the Trans Mountain project. “Another win on the #TMX pipeline for Alberta!” he tweeted. “Now let’s get it built.”

Trans Mountain right of way

Construction underway

Trans Mountain hailed the start of construction activities on the pipeline right of way in early December, just days before the Federal Court of Appeal hearings began.

“We see this project as one that will enable us to get our resources to international markets,” Bill Morneau, Canada’s finance minister, told reporters on Tuesday.

“We also know of course that this is a project that can deliver significant economic benefit: economic benefit to Alberta, economic benefit to Canadians across the country.”

But Indigenous leaders, lawyers and economists have questioned the pipeline’s viability.

In December, environmental advocacy groups launched a petition calling on the federal government to publish an updated cost analysis for the project.

“The Trans Mountain pipeline is already a massive multi-billion dollar subsidy and Canadians have the right to know how much the price has increased,” Eugene Kung, staff lawyer at West Coast Environmental Law, said in a statement at the time.

“Canadians were told this would be a profit-generating investment and the profits would be devoted to renewable energy. Instead, it’s operating at a consistent loss and it isn’t even clear the government will be able to sell it, without taking another loss of billions of taxpayer dollars.”

In late January, the Supreme Court of Canada rejected an attempt by the BC government to have control over the contents of pipelines that run through the province and effectively ban shipments of heavy oil, such as bitumen.

BC Premier John Horgan, who previously vowed to “use every tool in the toolbox” to fight the Trans Mountain expansion, said he respected the top court’s decision.

“The courts have determined that the project is legitimate and should proceed,” he said on January 29, as reported by The Canadian Press news agency. 

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