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Appeal court overturns Trans Mountain approval, making project’s future uncertain

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West Coast Environmental Law is thrilled with the decision released today by the Federal Court of Appeal, which overturns the federal approval and stops construction on the Trans Mountain pipeline and tankers project.

In a ruling released this morning, Justices De Montigny, Dawson and Woods confirmed that Canada failed to meaningfully consult First Nations, falling “well short of the mark” set by the Supreme Court of Canada, and also made a “critical error” by basing its decision on a National Energy Board (NEB) report that illegally excluded marine shipping from its review.

“We are absolutely delighted with this result. Today the Court confirmed what we and our allies have been saying all along – the federal environmental review of the Trans Mountain project was inadequate, and the government’s consultation with Indigenous peoples affected by this project was fundamentally flawed,” said Jessica Clogg, Executive Director and Senior Counsel.

In a strongly worded decision, the Justices stated that the NEB “unjustifiably defined the scope of the Project under review not to include Project-related tanker traffic,” which led to “successive, unacceptable deficiencies in the Board’s report and recommendations.” With regard to Indigenous consultation, the Court found that Canada failed to “engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns.”

Today’s decision follows years of legal action by First Nations, local governments and environmental groups, including 14 separate judicial reviews that were consolidated and heard by the Federal Court of Appeal in October 2017.

“As the Tsleil-Waututh Nation and other First Nations have said, consultation on this project was a one-way street. Now that the Court has agreed, at a minimum the federal government must re-do the review and consultation process and make a fresh decision,” said Eugene Kung, Staff Lawyer. “If Canada is truly committed to reconciliation, it is time to walk away from this risky project.”

In May 2018, despite the substantial legal and financial risks facing the project, the federal government announced its plans to purchase the existing Trans Mountain pipeline system and expansion-related infrastructure from Texas-based Kinder Morgan.

“Kinder Morgan’s own CEO stated that an unfavourable judgement in this case would be ‘too much to bear,’ suggesting that it would stop this risky project from going ahead. Will this court loss be too much for the federal government to bear? That remains to be seen. Canada already overpaid for this risky project, and now its value is even lower – it’s time to cut our losses and move forward on a different pathway for Canada’s clean energy future,” said Kung.

The Court’s decision means that construction must now be halted while the federal government complies with the ruling.

Lawyers from West Coast are part of the legal team advising the Tsleil-Waututh Nation, one of the primary parties in the consolidated judicial review. The Tsleil-Waututh formally rejected the proposed Trans Mountain project in 2015, after conducting an extensive assessment of the project grounded in their Indigenous laws.

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