Ap­peal Court quashes ap­proval of Trans Moun­tain ex­pan­sion

The Niagara Falls Review - - Business -

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.”

JONATHAN HAYWARD THE CANA­DIAN PRESS

An aerial view of Kinder Mor­gan's Trans Moun­tain marine ter­mi­nal, in Burn­aby, B.C

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