TMX not likely deterred after court green-lights new appeals of project
CALGARY The decision by the Federal Court of Appeal to allow six new appeals of the long-delayed Trans Mountain pipeline expansion is “disappointing” to the Canadian oil industry, but isn’t likely to halt construction of the crude oil project.
The court ruled Wednesday that six of 12 legal challenges brought by opponents of the Trans Mountain pipeline expansion project, also known as TMX, would be allowed to proceed — raising new legal hurdles for the long-delayed 590,000-barrel-per-day pipeline between Alberta and B.C.
In his decision, Appeals Court Justice David Stratas divided the dozen legal challenges into two categories. Six were based solely on the potential negative environmental impacts of the pipeline, and those challenges were dismissed because there were re-litigating previous court cases. The other six were brought by affected First Nations groups and focused on whether the federal government had fulfilled its duty to consult.
In a move that has frustrated the oil industry and confused some legal experts, the federal government chose not to provide evidence prior to this decision on how it carried out its legal duty to consult with affected Indigenous communities along the pipeline route — so Stratas said he had to grant leave for the appeals.
The federal government “withheld their evidence and legal submissions on these points,” he wrote.
“It does seem surprising to me,” said Dwight Newman, an expert on Indigenous rights in constitutional and international law at the University of Saskatchewan. If the federal government had filed evidence, there’s a chance the further appeals would not have been allowed, but the court needs to weigh whether the feds followed its directives on how to consult with affected groups this time around, he said.