Federal Court of Appeal quashes of approval of Trans Mountain

Jermaine Castillo
August 31, 2018

Finance Minister Bill Morneau says the federal government is pushing ahead with its purchase of the Trans Mountain pipeline expansion despite a court ruling overturning approval of the project.

"We're going to review today's decision to ensure that we're meeting high standards when it comes to both protecting the environment and meeting our obligations to consult with Indigenous peoples", Morneau said during a news conference.

In addition to faulting the National Energy Board report on which the government based its approval, the court said Canada "fell well short of the minimum requirements imposed by the case law of the Supreme Court" at the last stage of the consultations with indigenous people.

The judgement was based on whether the federal government adequately consulted First Nations.

Shortly after the ruling, Kinder Morgan Canada shareholders voted more than 99 per cent in favour of a sale.

"The Indigenous applicants were entitled to a dialogue that demonstrated that Canada not only heard but also gave serious consideration to the specific and real concerns the Indigenous applicants put to Canada, gave serious consideration to proposed accommodation measures and explained how the concerns of the Indigenous applicants impacted Canada's decision to approve the project", the ruling stated.

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Reuben George of the Tsleil-Waututh Nation, which borders the Burrard Inlet, said the Indigenous coalition that has spent years in court challenges have won "a David and Goliath fight".

The Trans Mountain expansion would nearly triple the capacity of the six-decade old line, helping carry almost 600,000 more barrels of oil and fuels a day to the Pacific Coast, where they could be loaded onto tankers and shipped to markets in Asia.

Morneau said the government expects to close on the acquisition of the project as early as Friday. "It's probably a very frustrating day for a lot of First Nations who are along the route and were in support of it. The government should never have bought this pipeline", Singh said.

Finance Minister Bill Morneau, speaking on BNN Bloomberg television after the ruling, said the government remains committed to getting the pipeline built, arguing it's needed to diversify exports and ease the price discount that comes from being so reliant on the USA market.

That exclusion made the NEB report unreliable for the government when assessing the project, the court found.

"Right from the beginning, we always said water is life".

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The legal challenge had been brought by First Nations, the City of Vancouver and others.

"I don't regret anything about this", said Chief Lee Spahan in a phone interview.

"The court decision was not a condition of the transaction between KML [Kinder Morgan Canada Ltd.] and the federal government".

The Union of B.C. Indian Chiefs applauded the ruling, and demanded the pipeline be shutdown immediately.

In late May, Canada announced it would spend $3.5bn to buy the pipeline from Kinder Morgan, in essence nationalising the project. Horgan said he acknowledges the ruling "is a devastating decision for many in Alberta", but noted his job is to act on what his government believes to be best for British Columbia.

In particular, the court said it was an "unjustifiable failure" that the National Energy Board did not consider the environmental impacts the increased shipping traffic could have. "The NEB acknowledged that the marine traffic from this project posed significant harm to the endangered Southern Resident Killer Whales", Weaver said in a statement.

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Indigenous leaders across Canada welcomed the court's decision.

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