THE PEOPLE v TRANS MOUNTAIN
Context:
The Kinder Morgan Trans Mountain pipeline expansion project aims to construct a pipeline from Edmonton, AB to Burnaby, BC to export Alberta oil internationally. This pipeline would increase oil tanker traffic on the British Columbia Coast by 700%, more than 400 tankers a year. As per the SFU risk assessment, this increase creates a 79% chance of an oil spill in Vancouver’s coastal waters.
59 First Nations including almost every coastal nation directly impacted by tanker traffic, 21 BC municipalities including Vancouver, North Vancouver, Victoria, and Burnaby, and over 210,000 citizens have signed petitions opposing the Kinder Morgan pipeline and tanker project.
RAVEN has raised over $655k for the Tsleil-Waututh, Squamish, and Coldwater First Nations to launch court challenges. In 2018, the Federal Court of Appeal ruled in favor of Indigenous Nations, stopping all construction on Kinder Morgan’s pipeline.
Case:
Tsleil-Waututh Nation v. Canada (Attorney General)
Year: 2018
Court: Federal Court of Appeal
Citation: 2018 FCA 153
Location: BC
TAGS: Duty to Consult; Aboriginal Rights; honour of the Crown; Natural Resources; RAVEN
The Government of Canada must adequately and meaningfully consult affected First Nations prior to approving construction that could adversely impact the Nations. Consultation must be a “two-way dialogue” to be meaningful and must be conducted throughout the entire process.
Summary:
In Tsleil-Waututh Nation v Canada (Attorney General), 17 legal challenges filed against the National Energy Board and Federal Government were consolidated into one hearing. The Tsleil-Waututh Nation, Coldwater Indian Band, Upper Nicola Band, Squamish Nation, Stk’emlupsemc Te Secwepemc Nation, Sto:lo, the City of Burnaby, City of Vancouver, Raincoast Conservation Foundation and Living Oceans Society, and British Columbia banded together in efforts to prove that Canada had failed at upholding its duties in approving the pipeline expansion.
The report created by the National Energy Board recommended that the pipeline expansion be approved, stating that the project was in Canada’s public interest. Canada accepted this recommendation and issued a certificate approving the construction. The appellants alleged several concerns with the report and the processes used to obtain its approval.
The Federal Court of Appeal quashed the approval of the pipeline expansion and directed Canada to redo the final phase of consultation with Indigenous peoples.
The FCA held that there were several deficiencies in the report, including the impacts on the environment, and the consultation process with First Nations impacted by the pipeline. The Court found that Canada had improved the consultation framework from the one that had been quashed in Gitxaala Nation v Canada, but still had several shortcomings. The Court maintained that Canada had not meaningfully engaged in a dialogue with the very real concerns of the Indigenous applicants or attempted to negotiate accommodations to those concerns.
Canada did not appeal this decision. In October of 2018, the new consultation process began between Canada and 117 First Nations, conducted by retired Supreme Court Justice Frank Iacobacci.
Why this Case Matters:
This case affirms the decision of the FCA in Gitxaala and shows that the Court is serious about Canada conducting substantial, meaningful consultation with Indigenous peoples. Canada must be “prepared to amend policy proposals in light of the information received.” Consultations cannot just be a box to check but must be an actual attempt at hearing the concerns of the people that will be impacted. There must be a “genuine and sustained effort to pursue meaningful two-way dialogue” to fulfill the honour of the Crown. If not, projects will be quashed.
Go Deeper:
http://dgwlaw.ca/case-brief-tsleil-waututh-v-canada-attorney-general-2018-fca-153/
https://www.firstpeopleslaw.com/index/articles/370.php
https://raventrust.com/2018/03/12/whats-next-for-pull-together/
https://raventrust.com/2018/02/26/case-study-pull-together/
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