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.

Just Posted

Unique treasures to be found at Chilliwack Christmas Craft Market

The 44th annual event is the Chilliwack Community Arts Council’s largest fundraiser

Chilliwack toy drive brings in gifts, money to Ann Davis Transition Society

People dropped by Superstore to donate toys and more for those in need this holiday season

Seven Days in Chilliwack

A list of community events happening in Chilliwack from Nov. 18 to 24

Chilliwack RCMP find chemicals and cannabis extract in illicit lab

Marijuana may be legal but altering it using chemicals violates the Cannabis Act

Chilliwack RCMP seek suspects in rash of poppy donation box thefts

Incidents at four different locations in Sardis in the days leading up to Remembrance Day

Saving salmon: B.C. business man believes hatcheries can help bring back the fish

Tony Allard worked with a central coast First Nation to enhance salmon stocks

High-end B.C. house prices dropping, but no relief at lower levels

But experts say home ownership remains out of reach for many for middle- and lower-income families

Worker killed in collision at B.C. coal mine

Vehicle collision occurred at approximately 10:45 a.m. this morning

UPDATE: Hells Angels on scene after body found in Maple Ridge

Body was discovered beneath the Golden Ears Bridge

Mountie left with ‘significant’ injuries after driver attempts to flee traffic stop

Richmond RCMP are looking for a dark coloured Mercedes Benz

B.C. asking for tips on ‘dirty money’ in horse racing, real estate, luxury cars

Action follows a Peter German report on money laundering in B.C. casinos

Canadian dead more than a week after plane crash in Guyana: Global Affairs

Global Affairs said it couldn’t provide further details on the identity of the Canadian citizen

Children between 6 and 9 eligible for $1,200 RESP grant from province

BC Ministry of Education is reminding residents to apply before the deadline

Victoria spent $30,000 to remove John A. Macdonald statue

Contentious decision sparked controversy, apology from mayor

Most Read