Trans Mountain Hearing

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Two First Nations have since dropped out of the appeal after signing deals with Trans Mountain Corp., the Crown corporation that operates the pipeline and is building the expansion.

The Tsleil-Waututh and environmental groups filed leave to appeal to the Supreme Court of Canada, arguing that a broader hearing was necessary, but the high court has not yet issued a decision.

Leaders of the four Indigenous groups that are still challenging the project are expected to speak at a news conference before the hearing begins this morning.

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However, the four Indigenous groups allege that the government came into consultations having predetermined the outcome.

"Many of the Indigenous and First Nation applicants now allege that the poor quality and hurried nature of this further consultation rendered it inadequate," Federal Court of Appeal Justice David Stratas said in his decision allowing the legal challenges to proceed.

The governments of Alberta and Saskatchewan, which support the pipeline expansion, have joined the case as interveners.

Ottawa and Indigenous groups disagree on fairness of pipeline consultation

Lawyers for the Canadian government say it conducted a new round of consultations with Indigenous groups about the Trans Mountain pipeline expansion that was reasonable, adequate and fair.

Jan Brongers began arguments on behalf of the federal government Tuesday, asking the Federal Court of Appeal to toss out legal challenges to the government's approval of the project for the second time.

The court has heard from four Indigenous groups in British Columbia that say the government once again failed in its duty to hold meaningful dialogue about the project during consultations conducted between August 2018 and June 2019.

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A lawyer for the Tsleil-Waututh had argued the government withheld its peer review of three expert reports prepared for the nation until after the consultation period closed.

Anderson said the report in question wasn't a peer review at all, but a summary report intended to inform Canada's consultation team so that educated discussions could take place.

The government provided the First Nation with the internal review, even though it had no obligation to do so, and made the author available to the First Nation in a meeting, she said.

"In no way did Canada attempt to suppress or alter scientific information. To the contrary, Canada has been extremely transparent," she said.

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Another Crown lawyer, Jon Kahn, said the consultation with Coldwater was frustrated by delays initiated by the band. The chief and council stopped responding to government consultants over a six-week period, declined a meeting with the natural resources minister and asked for more time to discuss an alternate route for the pipeline, he said.

A lawyer for the First Nation said Monday that the band has asked for a two-year baseline study on an aquifer that provides the reserve with its only drinking water and that could be threatened by the project.

Kahn said information that Coldwater believes is missing about the aquifer and the alternate route will be filed with the Canadian Energy Regulator, formerly the National Energy Board, but determining the length of a baseline study is outside the court's purview.

First Nations accuse Canada of altering internal reviews of marine spill risk reports on Trans Mountain

The Tsleil-Waututh and Squamish nations have accused Ottawa of altering internal government documents related to the risks of marine spills before once again approving the Trans Mountain expansion project. 

Details of these allegations were presented in the Federal Court of Appeal this week where four First Nations groups are challenging the re-approval of the pipeline, arguing that consultations with their communities once again fell short of the standard required. 

 A Federal Court of Appeal ruling in August 2018 quashed the initial approval of the pipeline expansion and forced the federal government to revisit the last stage of consultation with First Nations.

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Tsleil-Waututh's core concerns about an expanded Trans Mountain pipeline are an increase in tanker traffic in the Burrard Inlet, impacts on the southern resident killer whale population and the risk of oil spills in the marine environment.

It says more research is needed on how to clean up a diluted bitumen spill and has concerns that it cannot be effectively cleaned up.

In 2018, Tsleil-Waututh commissioned three expert reports on these matters with the Squamish Nation. The nations, which have similar concerns about the project, submitted these reports to Canada during its reconsideration of the project. 

In court on Monday, Tsleil-Waututh's lawyer accused Canada of suppressing internal documents related to these expert reports, saying they weren't handed over to Tsleil-Waututh until after the revisited consultations were complete.

"Canada belatedly gave [Tsleil-Waututh] a revised version of a scientific conclusion that was altered… to downplay the scientific consensus and instead advocate for a pro-approval position," lawyer Scott Smith told the court on Monday. 

The Squamish Nation's lawyer Michelle Bradley raised similar concerns.

In their argument about the reports being altered, Tsleil-Waututh's lawyer said after Canada re-approved the pipeline in June the nation came into possession of previous versions of Canada's internal reviews that showed the final version it got earlier had been altered to "support Canada's position and the ultimate outcome selected."

Tsleil-Waututh argued that previous versions of the reviews showed Canada's scientists agreed with the expert reports commissioned by Tsleil-Waututh and Squamish that found there is insufficient information on the behaviour of diluted bitumen to adequately address the risk of oil spill and clean up. 

Speaking at a news conference on Monday, Tsleil-Waututh elected chief Leah George-Wilson said she was "extremely troubled" to learn about the allegations. 

"The federal government initially denied the existence of its own peer review documents of Tsleil-Waututh and Squamish expert reports," she said. 

In their argument about the reports being altered, Tsleil-Waututh's lawyer said after Canada re-approved the pipeline in June the nation came into possession of previous versions of Canada's internal reviews that showed the final version it got earlier had been altered to "support Canada's position and the ultimate outcome selected."

Tsleil-Waututh argued that previous versions of the reviews showed Canada's scientists agreed with the expert reports commissioned by Tsleil-Waututh and Squamish that found there is insufficient information on the behaviour of diluted bitumen to adequately address the risk of oil spill and clean up. 

Indigenous Communities Challenge the Canadian Government at the Federal Court of Appeals, Round 2

..in their own words video.

eta:..at the -8.20 mark there is an interesting discussion on processes. 

Provinces say Indigenous opposition to pipelines shouldn't outweigh others

The governments of Alberta and Saskatchewan are urging the Federal Court of Appeal to defer to cabinet's approval of the Trans Mountain pipeline because they say Indigenous opposition shouldn't outweigh other public interests in the project.....

..heard the ruling will come down this coming tue feb 4.

..from an email

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Federal Court of Appeal’s Ruling on TMX Brazenly Attacks Indigenous Title and Rights and Threatens Climate

Today the Federal Court of Appeal overruled the four challenges to the federal government’s re-approval of the Trans Mountain pipeline expansion (TMX). The Union of BC Indian Chiefs (UBCIC) is deeply disappointed by the court’s decision in Coldwater Indian Band et al. v. Attorney General of Canada et al. that gives the greenlight to a pipeline project that will contribute to carbon emissions, environmental harm, and violations of Indigenous Title and Rights. 

“UBCIC strongly disagrees with the decision released today and continues to stand by the Indigenous Nations who put forth their legal challenges to defend their right to free, prior and informed consent, and to hold the Crown accountable for its failure to adequately consult with Indigenous peoples,” stated Grand Chief Stewart Phillip, President of UBCIC. 

“The court’s ruling rests upon discriminatory and hypocritical foundations; their rejection of the Nations’ appeal rests on the claim that when it comes to a project of public interests, ‘the law does not require the interests of Indigenous peoples prevail,’ and that Indigenous peoples cannot veto projects such as the TMX. Let me make clear that Indigenous peoples are not seeking a veto. We are seeking to have our human rights upheld. The so-called rule of law cannot be used to discriminately discount the Title and Rights of the Indigenous Nations that stand to be impacted by natural resource projects on their territories. Furthermore, this is about more than the superficial duty to consult process, it is about the duty to the environment and to our grandchildren. In the end, this is another day at the office, and we are resolute in our commitment to uphold inherent Indigenous Title and Rights and self-determination, and to protect the lands and waters.”

Chief Don Tom, Vice-President of UBCIC stated, “We are saddened that Canada and BC continue to rally around the TMX– it represents an environmental liability that we simply cannot afford in the age of climate emergency. Canada has bulldozed a pathway forward on this unsustainable project that is in no way honourable, in the interest of the public, or aligned with its commitment to implement federal legislation on the United Nations Declaration on the Rights of Indigenous Peoples. 

Canada’s adversarial approach in dealing with Indigenous Nations concerned about the still inconclusive environmental risks the TMX poses, displays an alarming lack of respect for Indigenous Title and Rights and is inconsistent with the historic Supreme Court of Canada’s Tsilhqot’in judgement. Canada continues to ignore and minimize the severe environmental risks of the TMX: an oil leak could disastrously contaminate the main source of drinking water for the Coldwater Indian Band, and a seven-fold increase tanker traffic would raise the threat of an oil spill in sensitive habitat that lies within traditional territories of the Tsleil-Waututh and Squamish Nations.”

“The fossil fuel industry is culpable in the climate crisis and represents an era of greenhouse gas emitting infrastructure that is for dinosaurs, not for a world struggling to combat climate change; Canada needs to treat this as an incontrovertible fact,” continued Kukpi7 Judy Wilson, Secretary-Treasurer of UBCIC. “It is alarming that Canada is so dead-set on pursuing the TMX when oil prices are declining, forests are burning, and more and more animal species are on the edge of extinction.” 

She concluded, “The Federal Court of Appeal stated that ‘reconciliation does not dictate any particular substantive outcome.’ On the contrary, reconciliation is about better outcomes for everyone, and the betterment of Indigenous lives in a nation that has marginalized and stolen their Title and Rights since colonization. The court’s decision does not signal defeat; rather it signals a renewed call for all of us to collectively work together to permanently halt the project and make it clear to Canada and BC that they can’t adhere to reconciliation only when it serves their interests. They must capitalize on clean, sustainable energy that doesn’t come at the cost of the environment or the Title and Rights of Indigenous peoples.”

Supreme Court will not hear challenges from B.C. groups on Trans Mountain pipeline expansion

The Trans Mountain pipeline expansion project has cleared another legal hurdle.

The Supreme Court of Canada has decided not to hear five challenges from environment and Indigenous groups from British Columbia.

Some had wanted the top court to consider whether the Liberal cabinet violated the Species at Risk Act when it decided to approve the pipeline expansion a second time in June 2019, arguing the project would harm the highly endangered southern resident killer whales....