First Nations respond to Trans Mountain appeal decision

Leadership from Squamish, Tsleil-Waututh, Coldwater have voiced their disappointment with the Federal Court of Appeal's decision to uphold the federal government's re-approval of the Trans Mountain pipeline expansion. 

'We always said that we'd do what it takes to stop this pipeline,' said Rueben George

Rueben George of the Tsleil-Wautuuth Nation speaks to reporters on Tuesday after the Federal Court of Appeal’s decision to dismiss an appeal by multiple First Nations against the TMX pipeline expansion in Vancouver. (Ben Nelms/CBC)

Leadership from Squamish, Tsleil-Waututh, Coldwater voiced their disappointment with the Federal Court of Appeal's decision to uphold the federal government's re-approval of the Trans Mountain pipeline expansion at a news conference this afternoon in Vancouver. 

And also made clear that for them, this fight is not over.

"We always said that we'd do what it takes to stop this pipeline," said Rueben George, speaking on behalf of the Tsleil-Waututh Nation. 

"This government is incapable of making sound decisions for our future generations — so we are and we will. Even for their children."

Squamish, Tsleil-Waututh, Coldwater and a collective of bands within the Sto:lo nation squared off against the federal government in the Federal Court of Appeal in December, arguing that Ottawa failed, again, to conduct meaningful consultations with them about the expansion and that the project should be cancelled.

In a unanimous decision released Tuesday, the court dismissed their appeals, finding there was no basis for the court to interfere in the federal re-approval decision. 

"This was anything but a rubber-stamping exercise," the court said. 

"The end result was not a ratification of the earlier approval, but an approval with amended conditions flowing directly from renewed consultation."

The First Nation appellants still have 60 days to seek leave for an appeal with the Supreme Court of Canada, something those at the news conference said they'll discuss with their legal teams. 

There is also an outstanding appeal to the Supreme Court of Canada on the project re-approval, filed by Squamsih, Tsleil-Waututh and three environment groups. As a court of leave, the Supreme Court has yet to make a decision if it will hear the case.

"There are two potential options when it comes to the Supreme Court, said Khelsilem, spokesperson and elected councillor for the Squamish Nation.

In addition to potential legal and intergovernmental snags in the pipeline's future, Khelsilem also said, "It's important to recognize that B.C. has a long history of civil disobedience when it comes to environmental issues. There have been instances in B.C.'s history where hundreds of people were willing to face arrest."

Thousands of people march together during a protest against the Kinder Morgan Trans Mountain pipeline expansion in Burnaby, B.C., on Saturday March 10, 2018. (Darryl Dyck/Canadian Press)

Chief Don Tom, speaking on behalf of the Union of BC Indian Chiefs also spoke to this point — saying, "Without a doubt we will see an increase in land defenders."

Perfection not the standard for consultation

In making their cases before the Federal Court of Appeal, each nation brought forward its own specific arguments, and concerns, about the adequacy and substance of consultation that occurred before Ottawa re-approved the Trans Mountain pipeline expansion. 

Those concerns included very specific submissions around things like the safety and protection of drinking water, impacts on established fishing rights, oil spill response capacity, and impacts on the southern resident killer whales. 

The court summarized the First Nations' positions as trying to "impose a standard of perfection" on the consultation process. 

"If we accepted those submissions, as a practical matter there would be no end to consultation, the Project would never be approved, and the applicants would have a de facto veto right over it," the ruling stated. 

Chief Leah George-Wilson of the Tsleil-Waututh Nation holds a news conference alongside Squamish and Coldwater challenging the re-approval of the Trans Mountain pipeline in Vancouver on Dec. 16. (Ben Nelms/CBC)

Chief Leah George-Wilson, speaking on behalf of the Tsleil-Watuuth Nation, took issue with the legal standard applied in the decision and more specifically, what the court accepted as adequate and reasonable. 

"If we're talking about reconciliation and protection of the environment, I don't think reasonable is adequate. I think that sets a low bar for reconciliation, and is not reconciliation the most important item on the prime minister's agenda?" 

"We need to see some of that reconciliation and we need to see a different relationship."