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Trans Mountain court decision sets up conditions for pipeline approval

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Drumming, Vancouver Kinder Morgan protest. Photo: William Chen/Flickr

Tahlequah's "tour of grief" which saw one of the female southern resident killer whales (referred to by scientists as J-35) carry her deceased calf for 17 days was an unprecedented show of grief for the death of her calf. It is also a sad reminder of the fact that these endangered whales have had no successful births for three years. Her visible mourning tore at the heartstrings of many Americans, Canadians and especially Indigenous peoples who know all too well the pain of losing their children. While it is not uncommon for a killer whale to hold her deceased calf for a few hours or a day, this show of extended grief was the first time observed by scientists.

Some wonder whether Tahlequah's actions were not a call for help, given that there are only 75 whales left and the proposed increase in tanker traffic from the Trans Mountain pipeline threatens to wipe them out for good. Indigenous Nations in Canada and several conservation groups filed applications against Canada's decision to approve the pipeline in the hopes of saving these whales and all life in the surrounding ecosystem.

On August 30, 2018, Justice Eleanor Dawson delivered the decision of the Federal Court of Appeal, quashing Canada's approval of the Trans Mountain pipeline expansion (Tsleil-Waututh Nation v. Canada (Attorney General) 2018 FCA 153). From the moment the decision was released, there was more shock and awe to go around than had the court pronounced that the Earth was flat. While the controversy generated from that decision has been quite dramatic, the decision is far less apocalyptic than most might think.

Ultimately, this decision to quash the approval of the Trans Mountain expansion reflected principles espoused by the Supreme Court of Canada for the last two decades. No new law was created -- it was a case which reflected the current legal status quo.

This case -- unlike the raging fires in British Columbia or the melting of the ice in the Arctic -- is rather non-calamitous; unless of course you consider the fate of the southern resident killer whale or the health of the Indigenous lands and waters upon which this pipeline will wreak havoc. That is because despite the fact that the Federal Court of Appeal quashed the decision in this instance, it also set up the conditions for which the federal government can approve the pipeline in the future. So, while Prime Minister Trudeau moans about how "hurt" he is by the decision, and while the extractive industry goes into full panic mode, the only ones who need to be worried here are the Indigenous peoples and their conservation allies who will now face the full wrath of the oil industry and its federal and provincial cheerleaders.

Here's how it all started. On Dec. 16, 2013 (under the Harper government) Trans Mountain submitted an application to the National Energy Board (NEB) for a certificate to allow the expansion project to proceed. After several years of review, on May 19, 2016, the NEB recommended to the governor-in-council that the pipeline expansion be approved. Six months later, on Nov. 29, 2016, the governor-in-council (cabinet) (under the Trudeau government) accepted the NEB's recommendation and issued an order-in-council to that effect. The appeals of this decision were heard at the Federal Court of Appeal in October of 2017 and the court issued its decision almost a year later in August 2018.

This case involves individual applications by five First Nation collectives, two of B.C.'s largest cities, and two conservation groups asking the Federal Court of Appeal to overturn Canada's decision to approve the pipeline expansion. The respondents in the case were the Attorney General of Canada, the NEB and the Trans Mountain pipeline company. The Federal Court of Appeal consolidated the applications into one to be heard together.

While the applicants made various arguments challenging different aspects of the decision-making process, the FCA determined that the only "decision" that was under review was the decision of the governor-in-council to approve the expansion. That decision was challenged on two primary grounds: 1) the NEB's process and resulting report were flawed and 2) Canada did not fulfil its duty to consult with Indigenous peoples.

The primary reason why the Federal Court of Appeal found that the NEB's process was flawed was because it "unjustifiably defined the scope of the Project under review not to include Project-related tanker traffic." Specifically, the NEB excluded the impact of increased marine traffic on the B.C. coast on the southern resident killer whales, which are an endangered species, was not properly considered within its assessment of the impacts of the project. This is despite the fact that they had already acknowledged that the increase in large tanker traffic "would contribute to the total cumulative effects on the Southern resident killer whales, and would further impede the recovery of that species" and that "Southern resident killer whales are an endangered species."

They further acknowledged that: "... the operation of Project-related marine vessels is likely to result in significant adverse effects to the Southern resident killer whale, and that it is likely to result in significant adverse effects on Aboriginal cultural uses associated with these marine mammals."

The Federal Court of Appeal noted that Project-related tankers carry the risk of significant, if not catastrophic, adverse environmental and socio-economic effects should a spill occur. Ultimately, the governor-in-council could not rely on such a deficient report in order to make its decision.

The other ground challenging the validity of the decision was the finding that Canada did not fulfil its duty to consult and accommodate Indigenous peoples' legitimate concerns about the impact of the pipeline on their territories and their constitutionally protected Aboriginal rights and title.

Specifically, the Tsleil-Waututh Nation asserted Aboriginal title to the land, water, air and marine resources. The Squamish Nation asserted Aboriginal title, Aboriginal rights, the right to be self-governing and the right to fish. The Coldwater Band asserted Aboriginal rights and title, as did the Sto:lo Collective, Upper Nicola Band and Stk'emlupsemc te Secwepemc -- all within their respective territories. They had all engaged in Canada's consultation processes despite the limited funding to participate, the brief timelines and the consistent failure of federal officials to respond to their concerns.

In the end, the facts clearly show it was the First Nations groups who were acting in good faith, despite Canada's less than honourable actions.

This article is part one of a two-part series which was originally published in The Lawyer's Daily on September 11, 2018.

You can watch the CBC panel where we discussed the implications of this case here.

Photo: William Chen/Flickr

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