On Monday, December 16th, the Federal Court of Appeal will be conducting a judicial review of the Trans Mountain pipeline and tankers project approval. Tsleil-Waututh, Squamish and Coldwater First Nations are challenging the constitutionality of the 2019 approval of the project and will be arguing that the government failed to adequately consult them about a project that will significantly impact their lands, air and water.  

Judicial reviews of the previous approval of TMX — supported by Pull Together to the tune of $650k—  quashed project approvals, halted construction and forced a lengthy re-do of Indigenous consultation by the Federal Government. 

The First Nations litigants’ traditional territories cover virtually all of the pipeline’s route in B.C. If successful, these legal challenges could once again stop the project in its tracks by quashing or nullifying the approval announced on June 18th by Prime Minister Justin Trudeau. 

What is the legal basis of First Nations’ court challenges?

The cases argue multiple significant legal deficiencies of the federal cabinet approval. The main argument to be presented in the Dec 16-18 hearing is about inadequate consultation with First Nations, which was one of the primary reasons that the previous approval was overturned when the Federal Court of Appeal stated: “Canada’s efforts fell well short of the mark set by the Supreme Court of Canada.” 

The court documents argue that government consultation teams failed to engage in meaningful dialogue about a number of specific and focused concerns which remained unresolved when the federal Cabinet approved TMX. These include oil spill likelihood, behaviour and impact and, in particular, questions about whether diluted bitumen can be effectively cleaned up.

Canada’s ownership of the pipeline gives these new cases additional layers of complexity. The nationalization of the TMX in 2018 also gave rise to new legal arguments around bias and conflict of interest. Unfortunately, these new arguments fall outside the narrow scope imposed by Justice Stratas for this hearing . In his September 4, 2019 decision Justice Stratas also barred arguments relating to TMX’s impacts on climate; instances of noncompliance with the federal Species at Risk Act; and the economics of the project and the need for it.

Squamish and Tsleil-Waututh Nations have sought leave to appeal to the Supreme Court of Canada in order to challenge Justice Stratas’ decision which significantly narrows the scope of the Judicial Review and eliminates a number of important concerns. Stay tuned for that challenge which the Nations’ legal teams hope will be heard in spring 2020. 

Pull Together has raised $310K — and counting — to support Indigenous sovereignty and access to the courts.  Synchronized with an active force opposing tar sands expansion, the joint campaign is being run by RAVEN (Respecting Aboriginal Values and Environmental Needs) and Sierra Club BC. According to Susan Smitten of RAVEN, “Lawsuits are a severe capacity strain for First Nations, who stand as a last and inviolable line of defense against environmental destruction — if and only if the Nations can afford to uphold those rights in court.”  

By providing funding for  First Nations to access the justice system, citizens, organizations and businesses are all pulling together to level the playing field so that small Indigenous  communities have the resources they need to stand up for their rights. 

Now, it’s up to the legal teams to put in the performance of a lifetime, starting Monday. As Indigenous leaders travel from communities along the pipeline route to attend hearings, hundreds of supporters will gather in downtown Vancouver to show their support.  Hear from leaders of the Indigneous Nations fighting TMX in court: Join the rally : https://www.facebook.com/events/57464821335226