Appeal Court quashes approval of Trans Mountain expansion
VANCOUVER — The Federal Court of Appeal has overturned Ottawa’s approval of the contentious Trans Mountain pipeline expansion, but Finance Minister Bill Morneau is pledging to push ahead with his government’s purchase of the project.
In a unanimous decision by a panel of three judges, the court says the National Energy Board’s review of the proposal was so flawed that the federal government could not rely on it as a basis for its decision to approve the expansion.
The court also concludes that the federal government failed in its duty to engage in meaningful consultations with First Nations before giving the project the green light.
Prime Minister Justin Trudeau’s government approved the expansion project in 2016 and is so determined to see the line built that it announced plans this spring to buy the pipeline and expansion project for $4.5 billion after Kinder Morgan Canada balked at moving ahead with construction.
Shortly after the court ruling Thursday, company shareholders voted more than 99 per cent in favour of the sale.
Even with the court decision, Morneau said the project is in the national interest and needs to go ahead.
“Taken together, today’s decisions from the Federal Court of Appeal and Kinder Morgan shareholders are important next steps in getting this project built in the right way for the benefit of all Canadians,” he said in Toronto. “As we move ahead with the project and the purchase, our government remains committed to ensuring the project proceeds in a manner that protects the public interest. That means ensuring the highest level over governance — including environmental protection. It means upholding or commitments with Indigenous peoples and it means responsibly protecting Canada’s and Canadians’ investment.”
The ruling requires the energy board to conduct a new review — which the court suggests could be kept short — and means the government will have to redo part of its consultation with Indigenous groups.
The court combined into one case nearly two dozen lawsuits calling for the energy board’s review to be overturned.
First Nations, including the Tsleil-Waututh and Squamish on British Columbia’s south coast, argued that Ottawa did not adequately consult them before the review or the cabinet decision to approve the project.
The court found that the government’s representatives “limited their mandate to listening to and recording the concerns of the Indigenous applicants and then transmitting those concerns to the decision-makers. There was no “meaningful two-way dialogue.”
“The Indigenous applicants were entitled to a dialogue that demonstrated that Canada not only heard but also gave serious consideration to the specific and real concerns the Indigenous applicants put to Canada, gave serious consideration to proposed accommodation measures and explained how the concerns of the Indigenous applicants impacted Canada’s decision to approve the project.”
An aerial view of Kinder Morgan's Trans Mountain marine terminal, in Burnaby, B.C