Back in September, the Pull Together team celebrated the fact that the First Nations’ cases against Trans Mountain were going ahead even though the Federal Court of Appeal had rejected applications from Ecojustice and other environmental groups. Unfortunately, in the same September 4th decision, the judge significantly narrowed the grounds on which the Nations can challenge the approval of a project that would significantly impact their rights.
Tsleil-Waututh and Squamish Nations didn’t take this sitting down. On November 5, both Nations went to the Supreme Court seeking leave to appeal this decision, which eliminates even the possibility of raising important arguments that address the relationship between the government and the courts in a constitutional democracy.
“We are taking this issue to the Supreme Court of Canada not only to stand up for our inherent and constitutionally protected rights, but also to make sure that Canada follows their own laws when making decisions,” said Tsleil-Waututh Chief Leah Sisi-ya-ama George-Wilson.
The decision being challenged in this appeal restricts the allowable arguments only to matters of consultation. This means that the Nations wouldn’t be able to challenge the Project approval on the basis of Canada’s failure to consider the impacts of marine shipping, or its failure to comply with obligations under the Species at Risk Act to protect the Southern Resident Killer Whale.
“The stakes are at their highest for our Nation and our relationship to this iconic group of orcas – yéw̓yews in the Squamish language. The National Energy Board recognized that the Southern Residents are at a critical state and the Project would visit significant adverse effects upon them through acoustic disturbance, vessel strikes, oil spills and cumulative effects. It is of utmost importance to our Nation that the courts ensure that Canada complies with its obligations to protect this critically endangered species before the project goes ahead,” said Khelsilem, Squamish Nation Councillor and Spokesperson.
While waiting for the Supreme Court, both Tsleil-Waututh and Squamish continue to participate in the ongoing judicial review at the Federal Court of Appeals, where hearings have been scheduled for Dec 16-20. However, this new appeal could impact the scope of that case and, if successful, it could once again quash the federal approval of Trans Mountain.