Federal court lands blow against construction of Trans Mountain pipeline

Federal Court of Appeal says First Nations were not adequately consulted on the project and that marine traffic was not taken into account

Protesters in Victoria march in opposition to the pipeline. The Trans Mountain pipeline expansion proposal has been a hugely divisive issue in Canada. Photo by Belle White, Photo Editor

The Federal Court of Appeal ruled today that the Government of Canada did not properly consult with First Nations before the National Energy Board approved Kinder Morgan’s proposed Trans Mountain pipeline expansion project, and that issues related to marine traffic were not taken into account during the review process.

“The Board made one critical error,” reads the decision from the court. “The Board unjustifiably defined the scope of the Project under review not to include Project-related tanker traffic. The unjustified exclusion of marine shipping from the scope of the Project led to successive, unacceptable deficiencies in the Board’s report and recommendations.”

And, although the court acknowledged that the Government of Canada did consult with First Nations effectively for almost the entirety of the process, “at the last stage of the consultation process prior to the decision of the Governor in Council, a stage called Phase III, Canada’s efforts fell well short of the mark set by the Supreme Court of Canada,” they said.

“Canada failed in Phase III to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns.”

“Canada failed in Phase III to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns.”

As a result, the court ruled, the federal government should not have relied upon the National Energy Board’s report when they decided to approve the expansion project.

In 2016, a federal court ruled that the previous government under Stephen Harper and the Conservative Party of Canada failed to properly consult with First Nations during the approval process for the Enbridge Northern Gateway pipeline. This project was eventually scrapped.

Today’s decision is expected to be appealed and go to the Supreme Court. In the meantime, however, questions remained unanswered regarding the government’s announcement earlier in the summer that they would be buying the Trans Mountain pipeline from Kinder Morgan.

It has been estimated that it will take as many as two years for the case to make it to the Supreme Court. Until then, the project will remain in a $4.5-billion limbo.

This story is developing and will be updated as more information is made available.

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