The Federal Court of Appeal has dismissed a challenge to the Trans Mountain pipeline expansion, clearing the way for the $7.4-billion project to go ahead moving oil to B.C. from Alberta.
Four B.C First Nations filed court challenges last year after the federal government approved the project for the second time. The court concluded there is no basis for interfering with the approval and that there were meaningful consultations done with Indigenous groups.
In the decision posted on Tuesday, the Federal Court of Appeal said the Indigenous groups did not show that Canada failed to meet its duty to consult and accommodate during the re-initiated consultations.
“The case law is clear that although Indigenous peoples can assert their uncompromising opposition to a project, they cannot tactically use the consultation process as a means to try and veto it,” the court ruled.
The court said evidence shows there was “a genuine effort” to listen to and consider the applicant’s key concerns, engage in communication, and consider and sometimes agree to accommodations, which were “consistent with the concepts of reconciliation and the honour of the Crown.”
A court hearing in December focused on the government’s consultation with the First Nations between August 2018 and June 2019.
The consultation took place after the Court of Appeal struck down the first project approval in August 2018 in part because of insufficient dialogue with Indigenous groups.
The Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band near Merritt and a coalition of small First Nations from the Fraser Valley argued the government, which owns the pipeline, came into the consultations having pre-determined the outcome.
The federal government responded that consultations were meaningful, saying that instead of simply listening and recording the concerns it heard, it also incorporated them into broader programs to protect the environment.
The court found no evidence that the Governor in Council’s decision to approve the expansion was reached because of Canada’s ownership rather than the belief that the project was in the public interest.
“While the assessment that was ultimately made may benefit the Crown as owner of the project, nothing suggests that the Governor in Council was not guided by the public interest throughout,” the decision states.
The project is set to triple the capacity of the existing Trans Mountain pipeline to carry diluted bitumen and refined products from Alberta’s oilsands to a shipping terminal in Burnaby. The project will include 28 kilometres of pipeline through Kamloops.
Prime Minister Justin Trudeau’s government purchased the pipeline and related infrastructure for $4.5 billion in 2018 and construction of the expansion is underway.
Last month, the Supreme Court of Canada rejected B.C.’s attempt to regulate what can flow through the expanded pipeline from Alberta.
Premier John Horgan said he accepts the court ruling even though he is “not enamoured” with the prospect of a seven-fold increase in tanker traffic in the Strait of Juan de Fuca and Salish Sea.