Approval of the Trans Mountain oil pipeline expansion has been overturned on two counts by an Appellate Court ruling. The court found that Ottawa failed to adequately consider aboriginal concerns, and that a National Energy Board (NEB), study’s focus on tanker traffic was considered to be too narrow. “WE are winning,” said Chief Rueben George of the Tsleil-Waututh Nation. “The NEB was a flawed process from the beginning, and the courts recognized that today. This is a victory for all of us.”
The Appellate Court decision said the government failed in its constitutional duty to “engage in a considered, meaningful two-way dialogue” with First Nations affected by the project. “We tell the prime minister to start listening and put an end to this type of relationship. It is time for Prime Minister Trudeau to do the right thing,” said Khelsilem, a councillor and spokesperson for the Squamish Nation.
Grand Chief Stewart Phillip of the Union of British Columbia Indian Chiefs (UBCIC), called on the federal government to shut down the expansion project rather than try to resurrect the failed consultant process. He said he was not expecting a court ruling in favour of the First Nations.
“I was really taken aback by the decision.” said Phillip. “I’m absolutely elated. I’m ecstatic. We denounced the so-called consultation process from the beginning as fundamentally flawed, and the courts upheld that. In order for a new consultation to take place, they will have to go back to square one.”
Tsleil-Waututh Chief Maureen Thomas was joined by UBCIC Vice-President Bob Chamberlin in calling the decision a new chance at reconciliation. “I’m mindful of all the times that we stood together with Canadians that made the decision to stand with First Nations. This is what reconciliation can be in Canada.”
But not all First Nations are opposed to the expansion. Along the existing pipeline – from the Alberta oil sands to the tanker terminal on the west coast of BC – are many who still hope to see the expansion move forward eventually.
Chief Mike LeBourdais of the Whispering Pines First Nation near Kamloops said he welcomed the ruling that First Nations were not properly consulted even though he supported the pipeline going ahead under Indigenous control. “Right from the beginning we wanted a piece of the pipeline, either in tax or equity. We want to protect the environment, and we want to do it on our terms.”
The cancellation is based on two findings: NEB’s failure to ctonsider the project’s impact on the marine environment to include the impact of increased tanker traffic on the endangered population of southern resident killer whales, and, secondly, a failure in the last stage of the consultation process with First Nations – Phase 111.
Phase 111 requires engagement in a considered, meaningful two-way dialogue. “Canada fell well short of the minimum requirements imposed by the case law of the Supreme Court of Canada,” said Justice Eleanor Dawson. “For the most part, Canada’s representatives limited their mandate to listening to and recording the concerns of the indigenous applicants, and transmitting those concerns to the decision makers. The law requires Canada to do more than receive and record concerns and complaints. As a result, Canada must redo its Phase 111 consultation. Only after that consultation is completed and any accommodation made can the project again be put before the Governor in Council for approval.”