British Columbia

First Nations lose bid to reopen Trans Mountain appeal court file

The Federal Court of Appeal has rejected a bid by First Nations opponents of the Trans Mountain expansion to reopen the case's evidence file.

Federal Appeal Court judges dismiss media reports from whistleblowers as 'hearsay'

Although Kinder Morgan has signed agreements with 43 First Nations along the proposed expansion route, other aboriginal groups claim the Crown did not adequately consult them before approving the project. (Darryl Dyck/Canadian Press)

The Federal Court of Appeal has rejected a bid by First Nations opponents of the Trans Mountain pipeline expansion to reopen the evidence file in their appeal of the project's approval.

Lawyers for the Tsleil-Waututh Nation made the application after a series of articles appeared in the National Observer suggesting Canada undertook Aboriginal consultation on the project with a "mind made up."

They wanted the judges to consider unredacted versions of documents the news organization obtained through Freedom of Information requests.

But after looking at redacted copies, the appeal court judges concluded, in a May 31 decision that just appeared on their website this week, that even if they had the documents in their original form, the result of the pending decision wouldn't change.

"We have carefully read each of the 15 documents produced pursuant (to the Freedom of Information Act) and have concluded that they fall far short of establishing any of the ... assertions put forward by the Tsleil-Waututh," reads the decision.

Sheds no light

The First Nations who launched the appeal claim the Crown did not fulfil its Constitutional duties to adequately consult with Aboriginal groups whose territories and lives would be impacted by the pipeline expansion.

The National Energy Board approved Kinder Morgan's Trans Mountain expansion application in May of 2016.

The federal government gave its OK the following November.

Judges have rejected an application by First Nations opponents of the Trans Mountain pipeline expansion to reopen the court of appeal evidence file in the case. (Darryl Dyck/The Canadian Press)

In their appeal court application, the Tsleil-Waututh claimed the new documents showed the deputy minister of Natural Resources Canada discussed the regulatory review with the head of Kinder Morgan Canada months before the NEB's decision.

The First Nation also claimed the documents would confirm that "Canada had made its decision to approve the project" in late October — at the same time an assistant deputy minister told the Tsleil-Waututh no decision had been made.

But the appeal court judges said the documents made no reference to any decisions to expedite the project — referring instead to preparations needed "in the event the project is approved." 

The judges also found the documents shed "no light on whether Canada fulfilled its duty to consult with Tsleil-Waututh or any other Indigenous group" — the issue at the heart of the appeal court proceedings.

Confident of win

Kinder Morgan has signed agreements with 43 First Nations affected by the project — 33 of them with groups in B.C.. 

Last month, Ottawa announced its plans to buy the Trans Mountain pipeline for $4.5 billion but said the decision would not violate the government's commitment to upholding Indigenous rights or the existing agreements.

Tsleil-Waututh Nation member Rueben George says opponents are disappointed with the decision not to include the additional documents as evidence but are confident they will win their appeal. (CBC)

Rueben George, manager of the Tsleil-Waututh Nation Sacred Trust Initiative, said the opponents were disappointed with the appeal court decision but are confident that they will win the appeal anyway.

He said he expects the final ruling to come down by the end of the month. No matter what the judges decide, the matter is very likely to end up in the Supreme Court of Canada.

As part of the ruling on the documents, the appeal court judges noted that the Tsleil-Waututh had also relied on National Observer stories that cited "unknown people described in the articles to be whistleblowers."

But the judges said they gave no weight to those statements, which they described as "hearsay."


Jason Proctor


Jason Proctor is a reporter in British Columbia for CBC News and has covered the B.C. courts and mental health issues in the justice system extensively.