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West Coast reacts: Risks remain for Trans Mountain despite disappointing court ruling

Tuesday, February 4, 2020

Narrow Federal Court of Appeal decision is a blow for reconciliation and sustainability, lawyers say  

VANCOUVER, BC, Musqueam, Squamish & Tsleil-Waututh Territories – West Coast Environmental Law is dismayed by today’s Trans Mountain decision by the Federal Court of Appeal. Following a narrow review that excluded several key matters, such as diminished economic need for the project and impacts to southern resident killer whales, the court found that the federal government had nevertheless acted “reasonably” in re-approving the Trans Mountain pipeline and tankers project. 

The decision comes just two months after the consolidated hearing in Vancouver, where four Indigenous applicants challenged the pipeline’s federal approval citing flaws in the constitutionally-required consultation process.

“This is a disappointing result from the Court, but it is certainly not the end of our efforts to defend communities and the environment from Trans Mountain,” said Jessica Clogg, Executive Director & Senior Counsel. “We continue to stand with the Tsleil-Waututh Nation and other Indigenous nations as they consider their legal options and continue to  defend their territories from the risks posed by this project.”

In a 100-page judgement, Justices Noël, Pelletier and Laskin upheld the project’s approval, finding that the federal government’s Indigenous consultation efforts were adequate.  

During the hearing, the applicants outlined a number of serious problems with the government’s consultation process – including withheld or altered documents, and concerns about the government’s dual role as the pipeline’s owner and decision-maker.

“It’s clear that the government was aiming for the lowest possible bar on consultation. The courts may have let them get away with this for now, but if Canada is serious about reconciliation and upholding the UN Declaration on the Rights of Indigenous Peoples, our elected leaders absolutely must do better,” said Eugene Kung, Staff Lawyer.

Now that the Court has announced its decision, the Indigenous nations involved in the legal challenges will be considering their options and determining whether or not to appeal. An appeal challenging the narrow scope of the judicial review is already before the courts. Meanwhile, construction on the pipeline will be permitted to continue.

“This decision is a setback for reconciliation, for meaningful climate action and for public health and safety. But despite the result, Trans Mountain’s troubles are not over yet,” said Kung. “The Court’s ruling does not eliminate the extensive financial risks associated with the project, which could leave taxpayers on the hook for major losses as construction costs increase.”

Today’s ruling is the outcome of combined legal challenges launched by the Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band, and Ts’elxwéyeqw Tribes. Lawyers from West Coast continue to provide legal and strategic support to the Tsleil-Waututh Nation, who formally rejected the Trans Mountain project in 2015 after an assessment grounded in their Indigenous laws.

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For more information, please contact:

Eugene Kung | Staff Lawyer, West Coast Environmental Law
604-601-2514, ekung@wcel.org