Canada Top Court Rejects Trans Mountain Pipeline Plan Appeal

(Bloomberg Law) -- The Supreme Court of Canada on Thursday rejected an appeal from First Nations opposed to the federal government's approval of the Trans Mountain expansion pipeline.

The Coldwater Indian Band, the Tsleil-Waututh Nation, and the Squamish Nation claim Ottawa failed to properly consult them when approving the project in June 2019.

The court didn't publish reasons for its decision to deny the application for leave to appeal, which is normal procedure.

The appeal is one of the last remaining legal avenues for indigenous communities fighting the C$12.6 billion ($9.3 billion) crude oil pipeline in western Canada. The 1,150-kilometer (715-mile) project would triple capacity on an existing pipeline that carries crude from northern Alberta to a port near Vancouver, British Columbia.

‘Far From Over'

The First Nations can no longer pursue the same arguments in the courts now that the appeal has been rejected, their leaders and legal team said in a news conference Thursday.

But they can raise concerns in upcoming regulatory hearings over the project's specific route and by trying to protect specific parcels of land, said Eugene Kung, staff lawyer at West Coast Environmental Law and counsel for the First Nations.

“We know, by far, this is far from over,” Reuben George, manager at the Tsleil-Waututh Nation said at the conference.

The decision could set a bad precedent across the country if Ottawa adopts the standard of consultation used in the Federal Court of Appeal judgment across a wide range of decision-making, Kung said.

“The pipeline gets a lot of the political symbolism and media attention, but this question is potentially bigger going forward,” he said.

Government Changes

Natural Resources Minister Seamus O'Regan welcomed the decision and said the government changed both the project and the approval process to address concerns.

“Ministers engaged directly, project conditions were amended and accommodations were established, several of which were co-developed to respond to concerns raised,” O'Regan said in a statement Thursday.

Trans Mountain Corp., the federally owned company building the project, has continued to build sections of the pipeline despite the pandemic. The company expects construction to peak in mid- to late 2021, but doesn't have a public timeline for completion.

Trans Mountain has gone through two federal approval processes and years of consultation, president and CEO Ian Anderson said in a statement.

“We are pleased with the Court's decision to dismiss these applications and uphold the Federal Court of Appeal's decision,” Anderson said.

The oil transportation sector also applauded the court's decision, citing the need for investor confidence.

“Today's court decision provides the necessary clarity and certainty for major projects in Canada to proceed,” Chris Bloomer, president and CEO of the Canadian Energy Pipeline Association, said in a statement.

Spill Risks and Tanker Traffic

The expansion has long been a target of some indigenous communities and environmental groups, who are concerned about spill risks and a seven-fold rise in oil tanker traffic on the Pacific Coast.

The Federal Court of Appeal upheld the federal Canada Energy Regulator approval in February. The court found federal officials were reasonable in discharging their duty to consult indigenous communities along the pipeline, a responsibility spelled out in Canada's Constitution.

The Canada Energy Regulator permit imposes 156 conditions on the project and makes 16 recommendations to government to address environmental and indigenous concerns.

To contact the reporter on this story: James Munson in Toronto at correspondents@bloomberglaw.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Renee Schoof at rschoof@bloombergindustry.com

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