The Federal Court of Appeal ruling against the Trudeau government’s approval of the Trans Mountain pipeline was definitely a significant win for the Indigenous nations that led that court challenge and we should celebrate their accomplishment.
But there is no doubt that the Trudeau government intends to continue to pursue the construction of this pipeline because:
They’ve already said so
After the court ruling, Prime Minister Justin Trudeau tweeted, “I spoke with Premier @RachelNotley — and reassured her that the federal government stands by the TMX expansion project and will ensure it moves forward in the right way.” Furthermore, Finance Minister Bill Morneau told BNN on the day of the ruling, “This project will be built.”
It bought the pipeline even after the court ruling
CBC reported, “[Morneau] described the pipeline purchase as a good investment that will yield strong returns in years ahead, and that the deal to buy it will be finalized as early as [August 31].” Social media was highlighting that the deal with Kinder Morgan included an “escape clause” (a $10 million penalty) to get out of the $4.5 billion purchase, but the government has expressed no interest in that option.
How might the government push ahead with the pipeline?
Consultation
The panel of three judges ruled the consultation process was “missing a genuine and sustained effort to pursue meaningful, two-way dialogue”.
The ruling does not appear to require the free, prior and informed consent of the nations affected, just consultation.
Inclusion of marine shipping in a new review
The Federal Court judges also ruled, “The unjustified exclusion of project-related marine shipping from the definition of the project rendered the board’s report impermissibly flawed.”
Again, the government could include this in an abbreviated new review process and then claim the primacy of the “national interest” in approving the project.
The Province has reported, “On the inadequate consideration of increased oil-tanker traffic on killer whales, the judge suggested a relatively quick fix for that… The Trudeau cabinet (‘Governor in Council’) may now direct the National Energy Board to reconsider the tanker-traffic impacts ‘taking into account any factor specified by the Governor in Council’, the judge wrote. ‘As well, the Governor in Council may specify a time limit within which the board shall complete its reconsideration.'”
And the Vancouver Courier reports, “North Vancouver MP Jonathan Wilkinson, who is also the federal minister of fisheries and oceans, said he feels strongly the work done by the government on the Oceans Protection Plan and to protect southern resident killer whales will eventually be deemed sufficient to allay environmental concerns raised in the court decision.”
Consultation means delay, not derailment
Morneau has already stated, “[The project] needs to go through a process that ensures we consult appropriately and engage appropriately as identified by the court…” He has also noted, “[The court] has given us some good directions in next steps.”
The court ruling itself unfortunately highlights, “The end result may be a short delay, but, through possible accommodation, the corrected consultation may further the objective of reconciliation with Indigenous peoples.”
Appeal
There is also a possibility the federal government could choose to challenge the Federal Court of Appeal ruling at the Supreme Court of Canada.
The Vancouver Courier notes, “[The federal Minister of Fisheries and Oceans] said the government is still deciding how it will respond to the decision. That could include appealing to the Supreme Court of Canada or going back to the National Energy Board and doing additional work on consultation and environmental issues, he said.”
The Canadian Press adds, “Morneau did not rule out seeking leave to appeal to the Supreme Court of Canada…”
Sadly, the Trudeau government remains committed to building this pipeline and the Federal Court of Appeal ruling may not be sufficient to stop it. While the ruling wins an important delay and creates new opportunities to resist this project, the power needed to stop this climate crime may still rest with people in the streets and on the land.
Image: William Chen/Wikimedia Commons
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