First Nations who succeeded in having the courts quash the federal government’s approval of the Trans Mountain pipeline expansion have lost their appeal of its re-approval.
The Federal Court of Appeal on Tuesday, Feb. 4, dismissed an appeal by four First Nations of a federal cabinet decision to re-approve the pipeline’s expansion.
And while the appeal court said they have the right to appeal to the Supreme Court of Canada, the court provided some clarification on the question of whether the duty to consult necessarily means First Nations have a legal right to veto a project they don’t like.
“While the parties challenging cabinet’s decision are fully entitled to oppose the project, reconciliation and the duty to consult do not provide them with a veto over projects such as this one,” the court said in a written judgement.
The Trans Mountain pipeline expansion was approved by federal cabinet in 2016, but the expansion project was halted by the federal Court of Appeal in 2018, literally hours after shareholders with Kinder Morgan voted to approve the sale of the pipeline and expansion project to the federal government for $4.5 billion.
The appeal court found the federal government had failed on two points when it approved the expansion. The National Energy Board had failed to properly assess the environmental impacts of an expanded pipeline on the marine environment — particularly on killer whales. And the federal government had failed to do a proper and thorough consultation with First Nations, notably the Tsleil-Waututh of Burrard Inlet.
The federal government went back to the drawing board, addressing both issues, and then re-approved the pipeline's expansion. Several First Nations and environmental groups applied for leave to appeal and the court granted four of them leave: Coldwater Indian Band, Squamish Nation, Tsleil-Waututh Nation and the Ts’elxwéyeqw Tribe. The appeal court confined the hearing to the question of whether or not the federal government had satisfied its duty to consult First Nations.
On Tuesday, the court found that the federal government had fulfilled its duty to consult and dismissed the appeal and awarded costs to the respondents.
In rendering its decision, the court offered some clarification on the question of consent — a concept that has been muddied somewhat by the government's embracing of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). A clause in UNDRIP that requires the "free, prior and informed consent" of indigenous people for development in their territories has been interpreted by some as a veto.
"Tsleil-Waututh submits that Canada’s mandate should have included seeking or obtaining Tsleil-Waututh’s consent…" the court writes in its decision. "Canada expressed its desire to ‘seek to secure the free, prior, and informed consent’ of Tsleil-Waututh for the project at the start of the re-initiated consultation process.
“That being said, Canada was under no obligation to obtain consent prior to approving the project. That would, again, amount to giving Indigenous groups a veto.”
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This article has been updated since it was originally posted.
