Several B.C. First Nations are celebrating the Federal Court of Appeal’s ruling this morning that quashed the approval of the Trans Mountain pipeline expansion project, while other First Nations still hold hope it will proceed.
“We are winning. The NEB was a flawed process … and the court recognized that today,” said Tsleil-Waututh Chief Rubin George at a joint news conference in Vancouver on Thursday morning. “This is a victory for all of us.”
The appellate court decision said the government failed in its constitutional duty to “engage in a considered, meaningful two-way dialogue” with First Nations affected by the project.
“We tell the prime minister to start listening and put an end to this type of relationship. It is time for Prime Minister [Justin] Trudeau to do the right thing,” Khelsilem, a councillor and spokesperson for the Squamish Nation, said in a morning statement.
The application for a judicial review of the federal approval of the project was launched by several First Nations, including the Squamish and Tsleil-Waututh and came to include the Cities of Vancouver and Burnaby, the province of B.C. and two non-governmental agencies.
Grand chief ‘taken aback’ by decision
Grand Chief Stewart Phillip of the Union of B.C. Indian Chiefs (UBCIC) said he was not expecting the court to rule in favour of the First Nations.
“I was really taken aback by the decision,” said Phillip. “I’m absolutely elated and ecstatic … We condemned the so-called consultation process from the beginning and the courts upheld that.”
“In order for a new consultation to take place, they will have to go back to Square 1,” said Phillip, who called on the federal government to drop the expansion project rather than try to resurrect the failed consultation process.
Other speakers, including Squamish Chief Maureen Thomas and UBCIC vice-president Bob Chamberlin, called the decision an opportunity to redefine the consultation process and a new chance at reconciliation for Canada and First Nations.
“This is not a surprise to any First Nation leader in Canada. It is a unilaterally defined process,” said Chamberlin, who called for a jointly defined consultation process that better respects First Nations input.
But not all First Nations along the existing pipeline’s 1,150-kilometre route from the Alberta oilsands to the tanker terminal on the West Coast of B.C. are opposed to the expansion project.
Many still hope it will go forward eventually.
Chief Mike LeBourdais of the Whispering Pines First Nation near Kamloops says he supports the pipeline going ahead under Indigenous control, and his First Nation is part of a contingent of dozens of First Nations trying to buy it.
‘Canada fell well short’
Thursday’s court decision, which effectively halts all construction until a new federal permit meeting the court’s conditions can be approved, quashed Ottawa’s approval of the project on two grounds:
- The National Energy Board’s failure to consider the project’s impact on the marine environment, including the impact of increased tanker traffic on the endangered population of southern resident killer whales.
- A failure in the last stage of the consultation process with First Nations — referred to as Phase III — to “engage in a considered, meaningful two-way dialogue.”
“Canada fell well short of the minimum requirements imposed by the case law of the Supreme Court of Canada,” said the court’s decision, written by Justice Eleanor Dawson.
“For the most part, Canada’s representatives limited their mandate to listening to and recording the concerns of the Indigenous applicants and then transmitting those concerns to the decision-makers,” it said. “The law requires Canada to do more than receive and record concerns and complaints.”
“As a result, Canada must redo its Phase III consultation. Only after that consultation is completed and any accommodation made can the project again be put before the Governor in Council for approval.
The court added: “The end result may be a short delay in the project, but, if the flawed consultation process is remedied, the objective of reconciliation with Indigenous peoples may be furthered.”