All four First Nations that were party to the most recent Federal Court of Appeal case challenging the Trans Mountain expansion approval have applied for leave to appeal to the Supreme Court of Canada.
The Squamish Nation, Tsleil-Waututh Nation, Ts’elxwéyeqw Tribes and Coldwater Indian Band have each filed applications to the country’s highest court, looking to challenge the Federal Court of Appeal’s decision to dismiss their appeals in February.
The First Nations were looking to the Federal Court of Appeal to quash the approval of the pipeline expansion project (for the second time) but were unsuccessful.
Tsleil-Waututh Chief Leah George-Wilison said that decision “represents a major setback in reconciliation.”
“If unchallenged it could change the way consultation and consultation cases happen in Canada, making it less meaningful for protecting our inherent, constitutionally protected Aboriginal rights,” she said.
Each applicant has its own distinct concerns about the impacts of the pipeline expansion, which if built would carry nearly a million barrels of oil per day from Alberta to B.C.’s coast.
For Tsleil-Waututh and Squamish, protecting the Burrard Inlet and the southern resident killer whales from increased tanker traffic and potential oil spills have been at the heart of their opposition to the project.
“It’s about our future. It’s about where we live. It will be about how we live,” said George-Wilson.
For Coldwater, protecting an aquifer that provides the community with its drinking water is its core concern.
The Ts’elxwéyeqw Tribes are concerned about their established fishing rights on the Fraser River.
In an emailed statement, Natural Resources Canada said it’s aware of the applications to the Supreme Court of Canada and that the federal government will file its replies according to the court’s deadlines.
“We will continue to take the necessary steps to ensure this project moves forward in the right way, every step of the way, including by working with Indigenous peoples,” said the statement.
Trans Mountain did not provide comment before time of publishing.
Federal Court of Appeal dismissed appeals
The Federal Court of Appeal ruled in February that the court would not interfere in Canada’s re-approval of the Trans Mountain pipeline expansion and dismissed the appeals of the four First Nations appellants.
The nations each made arguments rooted in their specific concerns and circumstances, collectively asserting that Canada failed to conduct meaningful consultations with them about the expansion project again. As a remedy, they asked the court to quash the project’s re-approval.
The duty to consult is a phrase often heard in relation to development projects and First Nations. At its core is Section 35 of the Constitution, which recognizes Aboriginal and treaty rights. Court rulings have been defining what Indigenous rights look like in this country, and under what circumstances the government can make decisions that infringe on those rights.
In its unanimous decision to dismiss the appeals, the Federal Court of Appeal summarized the First Nations’ positions as trying to “impose a standard of perfection” on the consultation process.
“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 ruling stated.
Federal Court of Appeal decision ‘must be scrutinized’
Now, the First Nations appellants want the Supreme Court of Canada to weigh in. As a court of leave, the Supreme Court will make the decision to hear the case or not.
Khelsilem, an elected councillor for the Squamish Nation, said “it is integral that we challenge that appeal decision.”
“It must be scrutinized by a higher level of courts.”
George-Wilson said that, compared to the earlier Federal Court of Appeal decision that quashed the first approval of the project, the second Federal Court of Appeal case applied a new Supreme Court of Canada decision in its analysis.
The Supreme Court of Canada issued the Vavilov decision in December 2019 — after the First Nations appellants had made their oral arguments at the Federal Court of Appeal.
The Vavilov case was about two Canadian-born men fighting to keep their Canadian citizenship despite being born to Russian spies. Beyond affirming the men’s Canadian citizenship, the decision also introduced new case law around standards of review that were applied in the Federal Court of Appeal’s ruling in February.
If allowed to proceed to the Supreme Court, the Squamish application states, “This case will allow the court to squarely address the application of the reasonableness standard discussed in Vavilov to decisions engaging the Crown’s unique constitutional obligations to Aboriginal peoples.”