Supreme Court dismisses Indigenous appeal of Trans Mountain pipeline approval

OTTAWA — Several B.C. First Nations vowed Thursday to keep their fight against the Trans Mountain pipeline expansion going, despite losing what appears to be the last known legal option to overturn federal approval of the project.

The Supreme Court of Canada dismissed an appeal from Squamish Nation, Tsleil-Waututh Nation and Coldwater Indian Band. The dismissal, which as usual came with no explanation for the decision, effectively upholds a decision by the Federal Court of Appeal in February that Ottawa's June 2019 approval of the project was sound.

Natural Resources Minister Seamus O'Regan said the government had worked hard to hear and accommodate concerns the communities have with the project and welcomed the court's decision.

"The government approved TMX because it is an important project for Canada," he said in a statement.

"Construction of TMX is underway and has already created more than 4,900 good, well-paying jobs, will help us gain access to new markets for our resources and generate revenue to help fund clean energy and climate change solutions."

The pipeline is currently expected to be in service in about two years.

Alberta Premier Jason Kenney called the dismissal another "legal vindication" for the pipeline, which was first proposed eight years ago but has been delayed by numerous legal challenges.

It clears the way for construction to continue on the project, which will nearly triple the amount of diluted bitumen that can be carried from Alberta's oilsands to a marine terminal in Burnaby, B.C.

"This is yet another critical victory for pipelines, for our prosperity," Kenney said at an event in Taber, Alta., Thursday morning. He said 120 of 129 First Nations affected by the pipeline either approve or do not object to it.

The First Nations behind the appeal, however, said they were disappointed but not surprised by the outcome, and vowed to fight on.

"What I can tell you today is that this is not the end of our story," said Tsleil-Waututh Nation Chief Leah George-Wilson, at an online news conference.

George-Wilson said she will now consult with her community before deciding what to do next. She and other community leaders said there remain some legal options open to them but declined to say what they are.

Chris Lewis, a Squamish Nation councillor, said the next steps for his community will be "focused on protecting our territory to the full extent possible." He said an ongoing study underway about diluted bitumen will be a key part of that.

Coldwater Chief Lee Spahan said his community will continue to push back about the planned route for the pipeline, which it says puts its aquifer at risk, the sole source of drinking water for the First Nation.

But Thursday's decision is the end of the road to have the courts overturn the federal government's approval of the project, and is the fourth court victory this year for pipeline proponents, including the February Appeal court decision at the centre of Thursday's case.

In January, the Supreme Court ruled against the B.C. government's attempt to regulate what can flow through the pipeline in January because as an interprovincial project it is entirely within federal jurisdiction. In March it also declined to hear an appeal over the federal approval from environment groups.

Ottawa has now approved the project twice, forced to do more Indigenous consultation and environmental review after the Federal Court of Appeal agreed with First Nations and environment groups that the first attempts were flawed. In February, however, that court said Ottawa had now lived up to its duty to consult.

The First Nations leaders speaking Thursday vowed the pipeline will never be finished, and questioned Prime Minister Justin Trudeau's repeated assertion that there is no relationship more important to him than Canada's relationship with Indigenous Peoples.

"This case is about more than a risky pipeline and a tanker project," George-Wilson said. "It is a major setback for reconciliation. It reduces consultation to a purely procedural requirement that will be a serious barrier to reconciliation."

She said the Federal Court of Appeal relied on Ottawa's own assessment of its consultation process, which she argued was flawed since Ottawa now owns the pipeline and so had a conflict of interest.

Trudeau has repeatedly sold the project as a compromise between Canada's need to develop and take advantage of its natural resources in order to fund a transition to a cleaner, greener future.

Most oil produced in Alberta is sold at a discount because Canada is so heavily reliant on the United States as its customer. The hope is that this pipeline will carry more Canadian oil to the Pacific, where it can make its way to Asia and raise the price companies can get for oil.

This report by The Canadian Press was first published July 2, 2020.

— with files from Colette Derworiz in Edmonton.

Note to readers: This is a corrected story. A previous version incorrectly included the Ts'elxwéyeqw Tribes among the appellants. They withdrew from the case in April.

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