Federal Court of Appeal upholds second approval of TMX pipeline

OTTAWA — The Federal Court of Appeal says the government’s decision to approve the Trans Mountain pipeline expansion a second time is reasonable and will stand.

In a unanimous, 3-0 decision Tuesday, the court dismissed four challenges to that approval launched last summer by First Nations in British Columbia.

The First Nations argued at a hearing in December the government went into consultations with Indigenous communities in the fall of 2018 having predetermined the outcome in favour of building the project.

But the three judges who decided the case say cabinet’s second round of consultations with First Nations affected by the pipeline was “anything but a rubber-stamping exercise.”

The judges say the government made a “genuine effort” to listen to and consider the concerns raised by the First Nations and introduced new conditions to mitigate them.

Key argument made by 4 First Nations fighting approval was conflict of interest claim:

“While the assessment that was ultimately made may benefit the Crown as owner of the Project, nothing suggests that the Governor in Council was not guided by the public interest throughout.”

— Marcella Bernardo (@Bernardo1130) February 4, 2020

Arguments from the four First Nations outlined consultation has not led to an agreement, nor does it mean reconciliation has been advanced.

“Put another way, reconciliation does not dictate any particular substantive outcome. Were it otherwise, Indigenous peoples would effectively have a veto over projects such as this one. The law is clear that no such veto exists,” reads the court documents. “Second, 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.”

Arguments point to consultations which invited 129 Indigenous groups potentially impacted by the pipeline and acknowledges 120 either supported it or did not oppose it.

The expansion project would triple the capacity of the existing pipeline between Edmonton and a shipping terminal in Burnaby, B.C.

It has become a political football for Prime Minister Justin Trudeau as he insists Canada can continue to expand oil production and still meet its commitments to cut greenhouse gas emissions.

Trudeau’s government stepped up to buy the existing pipeline in 2018 after political opposition to the project from the B.C. government caused Kinder Morgan Canada to pull out from building the expansion.

The government intends to finish the expansion and then sell both the existing pipeline and the expansion back to the private sector.

It has been in talks with some Indigenous communities about the sale, but Finance Minister Bill Morneau has said the project won’t be sold until all the risks to proceeding are eliminated. Those risks included this court case.

This report by The Canadian Press was first published Feb. 4, 2020.