Big court ruling could set Trans Mountain pipeline’s fate: experts

Big court ruling could set Trans Mountain pipeline’s fate: experts

A court decision expected Thursday could determine the fate of the contentious Trans Mountain pipeline

A court decision expected Thursday could determine the fate of the contentious Trans Mountain pipeline expansion and further define Canada’s duty to consult with First Nations, experts say.

The Federal Court of Appeal is to rule on a case that combined nearly two dozen lawsuits calling for the National Energy Board’s review of Kinder Morgan Canada Ltd.’s project to be overturned.

First Nations, including the Tsleil-Waututh and Squamish on British Columbia’s south coast, argued the federal government did not adequately consult them before the energy board review or the cabinet decision to approve the project.

A ruling in the Indigenous groups’ favour would be likely to kill the multibillion-dollar pipeline expansion that Canada has offered to purchase, said George Hoberg, a public policy professor at the University of British Columbia.

“If the Federal Court strikes down the permit authorizing the pipeline because of inadequate consultation, or for another reason, then I don’t see how the pipeline project can proceed — unless or until the Supreme Court reversed that decision,” he said.

Lawyers for the federal government told court that Ottawa conducted extensive consultation. If the government wins, the project will move forward, but a “very strong, persistent campaign of civil disobedience” by protesters in B.C. will persist, Hoberg said.

The decision is likely to be appealed to the Supreme Court of Canada either way, Hoberg predicted, and another 18 months to two years will pass before it’s settled.

Environmental groups and the cities of Vancouver and Burnaby also challenged the project in Federal Court last November, They were supported by the province of British Columbia, which was an intervener, as was Alberta. The province’s lawyer said Ottawa’s decision to approve the pipeline’s expansion between Edmonton and Metro Vancouver was based on a broad base of evidence that considered environmental, economic and Indigenous interests.

Kinder Morgan shareholders are set to vote on whether to approve the sale of the pipeline and expansion project to the Canadian government for $4.5 billion on Thursday morning, 30 minutes after the court decision is released.

The timing is a coincidence, said Amelie Lavictoire, executive director of the Federal Court of Appeal.

RELATED: Supreme Court dismisses Burnaby’s case against Trans Mountain pipeline

Asked if Canada could walk away from the deal if the ruling quashes the permit, a Finance Department spokesman said the agreement has been signed and there’s no backing out.

The government undertook a “very vigorous” review process before approving the project and is confident it will win the case, Natural Resources Minister Amarjeet Sohi said Tuesday.

“We await their decision … and we will respond accordingly, but we are moving forward on this project because this project is in the national interest.”

A ruling against the government would probably slow down the project but not necessarily stop it, said Werner Antweiler, a business professor at UBC.

“Ultimately, the federal government has legislative powers to see this project through,” he said in an email.

“The political cost will be substantially higher, though, if the court finds that the NEB failed in its duty to consult and accommodate Indigenous communities.”

The Crown’s duty to consult does not equal a veto power for First Nations, Antweiler said, and the decision will come down to what the court deems adequate consultation.

Rueben George, manager of the Tsleil-Waututh Nation’s Sacred Trust Initiative, said Canada never intended to consult in good faith and he expects the case to wind up in the Supreme Court.

“What I want is for the best interests of Canada — and that’s for this pipeline not to go through,” he said.

Kinder Morgan has already won several court victories, including one last week when the Supreme Court of Canada dismissed an application from the City of Burnaby to overturn a lower court decision.

RELATED: Pipeline protesters rally outside Trudeau cabinet meeting on Vancouver Island

Dwight Newman, Canada Research Chair in Indigenous Rights at the University of Saskatchewan, suggested Prime Minister Justin Trudeau’s government learned from a Federal Court ruling in 2016. It found the previous administration had failed to adequately consult with First Nations on Enbridge Inc.’s Northern Gateway pipeline.

The Liberal government further consulted with Indigenous groups and other stakeholders on the Trans Mountain project later that year, he noted.

“You might anticipate, then, that they have fulfilled consultation and the First Nation claims might be unsuccessful. But there could be a new surprise out of this case yet.”

The Canadian Press

Like us on Facebook and follow us on Twitter.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

A heavy police presence was on scene on Dec. 28, 2017 following the shooting death on Bates Road in Abbotsford of Alexander Blanarou, 24, of Surrey. (Abbotsford News file photo)
Three men charged with Abbotsford shooting death of Surrey man

Alexander Blanarou, 24, was killed in a rural area on Dec. 28, 2017

Photo by Dale Klippenstein
Hit-and-run driver knocks pedestrian into ditch in Abbotsford

Woman was walking in area of Harris Road and Riverside Street on Monday

Tabor Home in Abbotsford. (Ben Lypka/Abbotsford News)
B.C.’s largest COVID-19 care-home outbreak records 19 deaths, 147 cases

Tabor Home in Abbotsford has been battling outbreak since Nov. 4

Abbotsford residents gather in the Clearbrook area on Monday to demonstrate against what they say is unfairt treatment by the Indian government to farmers in the Punjab region of that country. (Maan Sidhu photo)
Abbotsford residents gather to protest unfair treatment of India farmers

Locals believe new bills will devastate small farms, demand farmers be allowed to protest peacefully

Menno Place. (Google Street View image.)
32 family members respond to Abbotsford care home’s plea for staffing help during COVID-19 outbreak

Menno Home asks for relief workers for food service, laundry and housekeeping

A tongue-in-cheek message about wearing a face mask to curb the spread of COVID-19 on a sign outside a church near Royal Columbia Hospital, in New Westminster, B.C., on Sunday, Nov. 29, 2020. THE CANADIAN PRESS/Darryl Dyck
B.C.’s COVID-19 infection count climbs back up to 656

20 more people in hospital, active cases still rising

Mirandy Tracy, left, and Tara Kurtz are two Langley mothers who are organizing a "sick out" for Tuesday, Dec. 1 to protest COVID conditions in schools. They're calling for masks and smaller class sizes, among other things. (Matthew Claxton/Langley Advance Times)
Politician, labour leader throw support behind student Sick Out day

Langley parents started the movement to keep kids home on Dec. 1 as a protest

A family emerged with a purchase at the Tannenbaum Tree Farm at 5398 252 St in Aldergrove on Sunday, Nov. 29, 2020 (Dan Ferguson/Langley Advance Times)
Christmas tree season is off to an early start

People are ‘bored’ with staying home due to COVID-19 and want to decorate early, farm owner believes

THE CANADIAN PRESS/Nathan Denette
B.C. researchers launch study to test kids, young adults for COVID-19 antibodies

Kids and youth can often be asymptomatic carriers of the novel coronavirus

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

A convoy of seven pickup trucks, six of which were hauling boats, makes its way around the Chilliwack Law Courts on Dec. 1, 2020. (Jenna Hauck/ Chilliwack Progress)
First court date for Fraser River anglers ticketed during demonstration fishery

Convoy of trucks circled the courthouse in downtown Chilliwack Tuesday honking their support

A sign is seen this past summer outside the Yunesit’in Government office west of Williams Lake reminding visitors and members to stay safe amid the COVID-19 pandemic. (Rebecca Dyok photo)
B.C. First Nation leaders await privacy commissioner decision on COVID-19 information

Release of life-saving data cannot wait, says coalition of First Nations

Most Read