British Columbia

Supreme Court dismisses First Nations' challenge against Trans Mountain pipeline

The Supreme Court of Canada will not allow an appeal from a group of First Nations in B.C. looking to challenge the federal government's second approval of the Trans Mountain pipeline expansion project. The First Nations said they would not be deterred by the decision.

First Nations hoped to challenge federal government's re-approval of project

The Supreme Court of Canada has rejected an appeal by B.C. First Nations challenging federal approval of the Trans Mountain pipeline expansion project, the Burnaby portion of which is pictured in June 2019. (Ben Nelms/CBC)

The Supreme Court of Canada will not allow an appeal from a group of First Nations in B.C. looking to challenge the federal government's second approval of the Trans Mountain pipeline expansion project.

The country's top court dismissed an application from the Squamish Nation, Tsleil-Waututh Nation and Coldwater Indian Band on Thursday, bringing an end to the years-long legal challenge.

Leaders with the Squamish Nation and Tsleil-Waututh Nation said they will keep exploring other avenues to stop the pipeline.

"Our decision to reject the project ... will not be altered by a decision from the Canadian courts," said Tsleil-Waututh Chief Leah George-Wilson on Thursday. "We are not deterred."

The First Nations were seeking leave to appeal a February decision by the Federal Court of Appeal that found cabinet's approval of the pipeline project in June 2019 was reasonable under the law.

The court did not release reasons for its decision Thursday, as is customary.

Chief Leah George-Wilson of the Tsleil-Waututh Nation, pictured in December 2019, said earlier this year that the appeal court's earlier rejection of the appeal could change how governments consult with First Nations on resource projects. (Ben Nelms/CBC)

Challenged adequacy of consultation

Tsleil-Waututh and Squamish leaders were challenging the adequacy of Indigenous consultation leading up to the second approval of the project.

The Appeal Court's decision earlier this year relied on a finding that cabinet's determination of its own consultation process was adequate.

The First Nations argued the decision should have been made at arm's length — considering cabinet is the owner of the project and is not an expert in consultation.

"To let the federal government be its own judge and jury of its consultation process was flawed in so many ways," said Syeta'xtn (Chris Lewis) of the Squamish Nation.

George-Wilson and Syeta'xtn both said the decision Thursday was a disappointing step back, not just for the fight against the pipeline but for Canada's relationship with Indigenous people.

"This case is about more than a pipeline ... it is a major setback for reconciliation," George-Wilson said.

Coldwater Indian Band Chief T. Lee Spahan speaks to media after the Federal Court of Appeal’s decision to dismiss an appeal by multiple First Nations on Feb. 4. (Ben Nelms/CBC)

"The government's conduct marks a stark departure from where we need to be."

The Squamish Nation and Tsleil-Waututh Nation said they are exploring other legal options to block the pipeline, but said it would be "premature" to discuss specific next steps on Thursday.

Lawyer Eugene Kung said there is a need to move quickly as construction on the expansion project moves forward.

Ottawa 'welcomes' decision

The federal government said the decision affirmed it had met its legal duty to consult with Indigenous people on the project.

"To those who are disappointed with today's SCC decision — we see you and we hear you," Federal Natural Resources Minister Seamus O'Regan said in a statement on Twitter.

"Canada will continue to engage with Indigenous groups at each step of the project in the months and years to come, and in the spirit of partnership, to make sure we get this right."

The Trans Mountain expansion project will triple the capacity of the existing pipeline, which runs between the Edmonton area to Burnaby, B.C. (Terry Reith/CBC)

Alberta Premier Jason Kenney said the decision was a win for the province and its economy.

"This is an affirmation that reconciliation also means 'reconcili-action,'" he said Thursday. "It means economic opportunity, it means saying yes to the vast majority of First Nations and Indigenous people who want to move their communities from poverty to prosperity by being full participants in responsible resource development."

The Federal Court of Appeal overturned cabinet's first approval of the pipeline expansion in 2018, citing insufficient consultation with Indigenous people and a failure to take into account the effect on marine animals.

After another round of consultations and a second look at how marine life would be affected, cabinet gave the project a green light.

In March, the Supreme Court of Canada decided not to hear five challenges from environment and Indigenous groups from British Columbia, which included the Tsleil-Waututh and the Squamish First Nations.

Some of those groups challenged a Federal Court of Appeal decision in February not to hear their request to consider whether there had been sufficient consultation.


  • A previous version of this story named the Ts'elxweyeqw Tribes as joint participants in the application for leave to appeal with the Supreme Court. In fact, the Ts'elxweyeqw Tribes withdrew from the application in April 2020.
    Jul 02, 2020 12:35 PM PT

With files from The Canadian Press