Federal Court agrees to hear appeal of cabinet's green light for Trans Mountain pipeline

The Federal Court of Appeal has agreed to hear an appeal from activists determined to overturn the Liberal government's approval of the Trans Mountain pipeline expansion project.

Attorney General David Lametti did not intervene in the request for an appeal process, court says

Pipe for the Trans Mountain pipeline is unloaded in Edson, Alta., in June. (Jason Franson/The Canadian Press)

The Federal Court of Appeal has agreed to hear appeals from opponents determined to overturn the Liberal government's approval of the Trans Mountain pipeline expansion project.

It's another legal hurdle for the long-delayed project — which, if it's built, will carry nearly a million barrels of oil per day from Alberta to B.C.'s coast.

The court has agreed to take up simultaneously six of 12 possible appeals to the federal cabinet's decision.

The court said it would hear evidence on whether the federal government adequately consulted with Indigenous peoples before approving the project for a second time in June — consultations that have since been described by critics as "window-dressing, box-ticking and nice-sounding words."

While the federal Liberal cabinet has now twice approved the project, Attorney General David Lametti "took no position for or against the leave motions brought by the Indigenous and First Nation applicants," the court said. 

As of two weeks ago, some construction work was already underway. The Crown corporation that now owns the line has said it will be finished by mid-2022.

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That timeline could now be in jeopardy if the B.C.-based Indigenous groups — including the Coldwater Indian Band, the Squamish Nation, the Tsleil-Wautuh Nation, the Upper Nicola Band and the Secwepemc Nation — are again successful in convincing the Federal Court to quash cabinet approvals and nullify construction permits.

A first nations canoe paddles near Trans Mountain's Westridge Marine Terminal in Burnaby, British Columbia in May 2019. (Ben Nelms/CBC)

"The court has ordered that the challenges proceed on an expedited basis. Short and strict deadlines for the steps in the litigation will be set," the court said in a short one-page news release Wednesday.

The court said the parties seeking an appeal have just seven days to file their applications for a judicial review, a timeline the court conceded is "extremely short."

"There is a substantial public interest in having the upcoming proceedings decided very quickly one way or the other," the court said.

Despite the potential for more delays through a court-ordered work stoppage, the Crown corporation building Trans Mountain said it is business as usual for now.

"As these cases make their way through the courts, we will continue with all aspects of planning and construction. The applications are challenging the decisions made by the Canada Energy Regulator and the federal government, but do not in and of themselves negate the pre-existing approvals provided by those governmental authorities until and unless the court rules otherwise," a spokesperson said.

Indigenous consultations at issue again

In a highly unusual move, the court also posted its legal reasons for agreeing to hear the appeals.

It said that Indigenous groups raised serious concerns about the federal Liberal government's re-do of the consultation process.

After the shock Federal Court decision last August, the government tasked retired Supreme Court justice Frank Iacobucci with leading the team of 60 Crown consultants who fanned out across Alberta and B.C. to meet with First Nations and Métis communities to document concerns and put forward recommendations that could mitigate the effects of this project.

"In their evidence, consisting of many thousands of detailed pages, the Indigenous and First Nations applicants point with considerable particularity and detail to issues they say were important to them. They say the Government of Canada ignored these issues in the original process of consultation and ignored them again in the further consultation process. They add that little or nothing was done in the process of further consultation," Justice David Stratas said in the decision.

"In their view, the time left for the further consultation process, roughly four months, was insufficient to address the shortcomings identified by this Court in Tsleil-Waututh Nation. Even during these four months, some of the applicants allege inactivity by the Government of Canada."

The ruling said Indigenous peoples opposed to the project told the court they believe much of what the Liberal government did to address ongoing concerns — the Iacobucci-led consultation team, for one — was "just window-dressing, box-ticking and nice-sounding words, not the hard work of taking on board their concerns, exploring possible solutions, and collaborating to get to a better place."

No federal intervention in appeals process

The court said the attorney general did state that if the leaves to appeal were successful, and the opponents applied for a judicial review, the government would defend cabinet's decision.

"But on the leave motions they offered no submissions or evidence to assist the court," Stratas said.

"Therefore, this court must conclude that the issue of adequacy of the further consultations ... meets the 'fairly arguable' standard for leave," he said.

Conservative Alberta MP Michelle Rempel said by failing to intervene in the appeals process the Liberal government "confirmed our worst suspicions."

"Today we found out Justin Trudeau rolled over and refused to stand up for the Trans Mountain pipeline in court — not submitting a defence against 11 motions to overturn the approval of the project," Rempel said.

"Trudeau never had any intention of seeing this pipeline built, but spent billions of tax dollars to kick the issue past the election. No one, on any side of the pipeline debate, should trust Justin Trudeau," she said.

The Federal Court of Appeal said Attorney General David Lametti "took no position for or against the leave motions brought by the Indigenous and First Nation applicants ... on the leave motions they offered no submissions or evidence to assist the court," the court said. (CBC)

When asked why the government did not try to head off another appeal by vigorously making its case in court, Natural Resources Minister Amarjeet Sohi said it was waiting to make such argument at "the right time."

"We want courts to decide who should have the right to appeal and who should not have the right to appeal at all," he said in an interview with CBC News Network's Power & Politics.

"We will be mounting that defence and at that time we will defend that record. We have a very strong record on these consultations and we responded to every legitimate concern that communities have identified. We have done everything right and I am confident we will continue to proceed. It will be completed by the middle of 2022."

While a troubling development for oil patch boosters, the court's decision was a major victory for some B.C. Indigenous peoples who have long opposed twinning the pipeline.

Leah George-Wilson, the chief of the Tsleil-Waututh Nation, near Vancouver, welcomed the decision to grant leave to appeal saying it's an "important step for defending our rights."

"We are confident that the court will once again decide in our favour. Tsleil-Waututh Nation participated in consultation in good faith again, but it was clear that Canada had already made up their mind as the owners of the project. Canada continued to do the legal minimum and in our view, fell well below the mark again," she said in a statement.

This Federal Court decision comes a year after the very same court quashed the federal cabinet's initial approval of the project — also citing inadequate consultations with Indigenous peoples affected by the project's construction.

The author of that decision, Justice Eleanor Dawson, did not mince words in her ruling, describing the Trudeau government's Indigenous consultation efforts as a "failure" and using that word well over 100 times in a 272-page decision.

While the majority of First Nations communities along the project's route have accepted the project and signed impact benefit agreements with the proponent — now a Crown-owned entity — some have flagged the potentially devastating effects of a spill on their traditional lands or in their waters as a risk factor demanding more accommodations.

Chief Leah George-Wilson of the Tsleil-Waututh Nation and several other Indigenous leaders discuss their court appeal of the latest Trans Mountain pipeline decision. (Maggie MacPherson/CBC)

Also in that 2018 decision, the court found the NEB's assessment of the project was so flawed — it did not consider the impact on marine life in B.C. waters — that it should not have been relied upon by the federal cabinet when it gave final approval to proceed in November 2016.

However, on Wednesday the court dismissed appeals centred on claims that the NEB did not do enough to address environmental and marine life concerns, saying that the agency, which has since been renamed the Canadian Energy Regulator, did prepare a substantial report for cabinet to review this time.

"Since this court's decision in Tsleil-Waututh Nation, the National Energy Board addressed this material deficiency by providing a comprehensive, detail-laden, 678-page report to the Governor in Council," Stratas said.

In rejecting another avenue for appeal, the court also dismissed a claim that cabinet was in a conflict-of-interest position because the government now owns the project, saying the governor-in-council (cabinet) is not the same as the Government of Canada.

The country's oil and gas sector is facing a serious pipeline capacity crunch, with all of the major export projects, including TC Energy's Keystone XL and Enbridge's Line 3, beset by delays.

The Liberal government bought the Trans Mountain expansion from its original U.S. proponent, Kinder Morgan, in 2018 after that company threatened to end all essential spending on the project in response to strident opposition from B.C.'s provincial NDP government.

Prime Minister Justin Trudeau has said the project will eventually be built "in the right way."

Trudeau has said building the project, which would help deliver Canadian oil to tidewater for shipment to lucrative markets in Asia, will ensure Canada is not dependent on selling its natural resources to one customer — the United States.

The government has committed to directing every single dollar the federal government earns from the pipeline — which, if it's ever built, is estimated to be some $500 million a year in federal corporate tax revenue alone — to investments in unspecified clean energy projects.

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John Paul Tasker

Senior reporter

J.P. Tasker is a journalist in CBC's parliamentary bureau who reports for digital, radio and television. He is also a regular panellist on CBC News Network's Power & Politics. He covers the Conservative Party, Canada-U.S. relations, Crown-Indigenous affairs, climate change, health policy and the Senate. You can send story ideas and tips to J.P. at john.tasker@cbc.ca.

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