Epic. Ecstatic. Elated. Some of the words today from Indigenous leadership as they took in the Federal Court of Appeal ruling on the now quashed Kinder Morgan pipeline. To quote Squamish elected councilor Khelsilem – “Quash is an old, old, old Squamish word that means ‘told you so!’”
We’re celebrating too – doing the happy dance! From RAVEN’s perspective, this judgment confirms our foundational mandate that the rule of law and Constitution have the potential to hold the Canadian industrial state to account. Particularly with respect to adverse environmental impacts – in this case marine-based.
There are some key legal precedents in this as well. The unanimous ruling points out that Canada failed its statutory obligation to save the whales:
The judgment reads:  I have found that the Board unjustifiably excluded Project-related marine shipping from the Project’s description. It follows that the failure to apply section 79 of the Species at Risk Act to its consideration of the effects of Project-related marine shipping on the Southern resident killer whale was also unjustified.
And the court pointed straight at the issue that was raised at the beginning by the Nations – the fact that the scope of the review bypassed marine shipping and tanker traffic. The judge called it a “critical error.”
The Board unjustifiably defined the scope of the Project under review not to include Project-related tanker traffic. The unjustified exclusion of marine shipping from the scope of the Project led to successive, unacceptable deficiencies in the Board’s report and recommendations. As a result, the Governor in Council could not rely on the Board’s report and recommendations when assessing the Project’s environmental effects and the overall public interest.
That led to the one of the biggest revelations in this lengthy ruling. This judgement outs some massive Orwellian maneouvres – tactics to create legitimacy for the state to do what it wants, simply by only looking at what it wants to. By excluding shipping from the scope of the review, the National Energy Board was able “ …to conclude that section 79 of the Species at Risk Act did not apply to its consideration of the effects of Project-related marine shipping. This exclusion then permitted the Board to conclude that, notwithstanding its conclusion that the operation of Project-related marine vessels is likely to result in significant adverse effects to the Southern resident killer whale, the Project (as defined by the Board) was not likely to cause significant adverse environmental effects. The Board could only reach this conclusion by defining the Project not to include Project-related shipping.”(emphasis added)
And then there is the consultation aspect. Phase III was supposed to be a meaningful, “genuine” two-way dialogue. Khelsilem characterized it accurately as “note-taking.” And the court agreed. (paras 557, 558, 559).
“Canada acknowledged it owed a duty of deep consultation to each Indigenous applicant. More was required of Canada. “ This conclusion is significant. And it’s another reason to be proud to have supported this legal action. When it comes to the notion of consultation, the legal question is whether Canada’s conduct was reasonable. The court was asked whether it was reasonable in Phase III and it was found that good faith wasthere, but then it just stopped. Instead, it was an ad hoc CYA effort, aimed at making up for the NEB deficiencies, and it failed. By underlining this, the court has set an important legal precedent.
Ultimately what we are celebrating is that the court fingered a two-fold failure: The NEB’s failure of scope – which led to a flawed report from which the Governor in Council could not “legally make the kind of assessment of the Project’s environmental effects and the public interest that the legislation requires.” Secondly, Canada “failed to fulfil its duty to consult with and, if necessary, accommodate the Indigenous applicants.”
It’s foreseeable Prime Minister Trudeau, now the proud owner of a bouncing baby elephant (as it sounds like the Kinder Morgan shareholders voted today to dump it in his lap), will force this back to go through another assessment.
Until then, we can revel in this win. And celebrate with the Nations who fearlessly took this forward. As Grand Chief Stewart Phillip said at the press conference, we want to also “acknowledge all who stood on the right side of history… knowing and understanding that the future of our grandchildren depends on us to defend the land and water.”
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