Prime Minister Justin Trudeaus government fulfilled its obligations to consult with Indigenous people when it re-approved the expansion of the Trans Mountain oil pipeline last year, a panel of the Federal Court of Appeal has ruled.
We conclude that there is no basis for interfering with the [cabinets] second authorization of the Project, the judgement states, dismissing an application by four Indigenous groups seeking to halt the project.
Read the court ruling here
The decision strips away one more layer of uncertainty over the $10-billion project which is now owned by the government of Canada. The expansion will triple the capacity of the existing pipeline from Albertas oilsands to a shipping terminal in Burnaby, allowing Alberta greater access to overseas markets.
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The court acknowledged that the four Indigenous communities behind the challenge – the Tsleil-Waututh Nation, the Squamish Nation, the Coldwater Indian Band and a coalition of small First Nations in the Fraser Valley – have a right to deep and meaningful consultation, but that right does not grant them a veto over the project.
The case law is clear that although Indigenous peoples can assert their uncompromising opposition to a project, they cannot tactically use the consultation process as a means to try to veto it, the court found.
The Court of Appeal quashed the approval for the Trans Mountain expansion project in 2018, citing inadequate consultation with Indigenous communities, as well as a failure to consider the negative effects of increased oil-tanker traffic on marine life.
In response, Ottawa conducted additional consultation and announced new measures to safeguard the marine environment. It then re-approved the project in June of 2019.
The troubled project has generated significant opposition on the West Coast because of concerns about increased oil tanker traffic. The province of B.C., the cities of Vancouver and Burnaby, environmental organizations and First Nations have fought the project, while construction at the Burnaby terminal has been interrupted by acts of civil disobedience, including the arrests of Green Party leader Elizabeth May, and now-mayor of Vancouver Kennedy Stewart. In 2018, the Texas oil giant Kinder Morgan threatened to walk away, prompting the federal government to buy the existing pipeline and the expansion project.
The trial heard the Indigenous groups allege that Canada did not engage in the renewed consultation process with an open mind – the outcome was pre-determined, they argued, because Canada owned Trans Mountain.
The court disagreed: There is no evidence that the [cabinets] decision was reached by reason of Canadas ownership interest rather than the [cabinets] genuine belief that the Project was in the public interest.
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The panel of judges recognized that Canadas duty to consult is an important aspect of reconciliation with Canadas Indigenous peoples, after what it describes as centuries of neglect and disrespect.
Too often decisions affecting Indigenous peoples have been made without regard for their interests, dignity, membership and belonging in Canadian society, with terrible neglect and damage to their lives, communities, cultures and ways of life. Worse, almost always no effort was made to receive their views and try to accommodate themquite the opposite. The duty to consult is aimed at helping to reverse that historical wrong.
But the court added: At some juncture, a decision has to be made about a project and the adequacy of the consultation. Where there is genuine disagreement about whether a project is in the public interest, the law does not require that the interests of Indigenous peoples prevail.”