Together against TMX: First Nations launch new round of legal challenges

For Immediate Release – July 9, 2019

Vancouver, Musqueam, Squamish and Tsleil-Waututh Territories

Several First Nations officially launched their appeals of the recent re-approval of the Trans Mountain Pipeline and Tanker Expansion Project (TMX) today. 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.

The First Nations applicants’ traditional territories cover virtually all of the pipeline’s route in BC.

Legal grounds include constitutional violations, primarily around the failure to satisfy the duty to consult, accommodate and seek consent from First Nations, and regulatory legal errors by the National Energy Board.

“Tsleil-Waututh Nation participated in consultation in good faith again, but it was clear that Canada had already made up their mind as the owners of the project.” Said Chief Leah George-Wilson of Tsleil-Waututh Nation. “They repeated many of the same mistakes again, and any changes were window dressing.”

Many First Nations argued that the pipeline would destroy significant spiritual and historic sites as well as important aquifers, impede their ability to practice their culture and exercise Aboriginal rights, and cause significant environmental impacts.

Shxw’owhamel First Nation Council member Si:yam Shane James stated “Shxw’owhamel challenges this approval to ensure that our sacred site is not desecrated. Sto:lo, Canadian and International Law will be violated if the pipeline route remains aimed at our historical village and burial grounds.”

Stk’emlupsemc te Secwepemc Nation Chief Ron Ignace and Chief Rosanne Casimir stated: “They tell you that the pipeline is simply being twinned in the same area, but that is not true in our case. Canada’s decision is to dig up our sacred site known as Pípsell in previously undisturbed land, turning up our burial grounds, rather than consult about a reasonable re-route. We will continue to protect Pípsell for the benefit of all Canadians.”

Chief George-Wilson concluded: “The federal government has again failed to respond to the concerns we have been raising in regards to this project. This feels like déja vu. We have no choice but to appeal again and we expect the same results – the approval of the Trans Mountain pipeline will be overturned.

Legal Backgrounder

Several First Nations have filed legal documents at the Federal Court of Appeal to commence a judicial review of the June 18, 2019 approval of the Trans Mountain Pipeline and Tanker Expansion Project (TMX).

The cases have the potential to stop TMX in its tracks, as we saw in August 2018 when the FCA released their unanimous decision that quashed the previous approval and appeals.

The First Nations applicants include Tsleil-Waututh Nation and Squamish Nation (Coast Salish, Metro Vancouver area); Ts’elxweyeqw tribes (Sto:lo, Fraser Valley); Shxw’owhamel Nation (Sto:lo, Hope area); Coldwater Indian Band (Nlaka’pamux, Merritt area), and Stk’emlupsemc te Secwepemc Nation (SSN) (Secwepemc, Thompson-Caribou Shuswap), covering virtually all of the pipeline’s route in BC.

The judicial reviews must be granted leave, or permission by the Federal Court of Appeal before proceeding. Canada and Trans Mountain will have ten days to file their responding documents arguing why the Court should not hear the judicial reviews. The applicants will then have five days to file reply arguments. After the Court reviews all of those documents, they will decide on whether leave should be granted. A decision on leave is anticipated by September 2019.

The cases argue multiple significant legal deficiencies with the federal cabinet approval. Success on any one of the legal grounds would halt the pipeline in its tracks and quash the decision, which is what happened in the FCA’s 2018 decision.

The grounds for appeal include a number of constitutional violations and regulatory legal errors.

Constitutional violations

The constitutional grounds include inadequate consultation with First Nations, which was one of the primary reasons that the previous approval was overturned when the FCA stated: “Canada’s efforts fell well short of the mark set by the Supreme Court of Canada.” The Appellant nations argue that once again, consultation fell short of the mark set by the Supreme Court of Canada.

In particular, the consultation teams failed to engage in meaningful dialogue about specific and focused concerns about the TMX Project. Once again, it was primarily a one-way street rather than a two-way dialogue.

The court documents argue that a number of specific and focused concerns 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;
Underlying economics and the need of the project, when Canada and the NEB continue to rely on stale evidence when making this fresh decision while refusing to consider updated economic evidence that demonstrates that the project is not needed and is likely to become a stranded asset;
Refusal to consider re-routing options to avoid important sites in several locations along the pipeline route (for example: Pipsel in SSN territory; Pit houses in Shxw’owhamel; Coldwater’s aquifer)
The impact on endangered killer whales, after the NEB found would have significant adverse effects from the Project.
Many of the appellant nations also argue that they have established aboriginal title and rights through the various processes, and that Cabinet failed to justify the infringement of those rights as required by Canadian law.

The nationalization of the TMX in 2018 also gave rise to new legal arguments around bias and conflict. Some applicants argue that Cabinet was unable to make an unbiased decision because they are also the owners of the project, as well as the enforcers of their own laws and regulations, and a fiduciary to First Nations (requiring decisions to be in the best interest of the First Nation). This violates basic procedural fairness, and has further implications on whether Cabinet upheld the ‘Honour of the Crown’ during consultation, given that the decision to approve TMX was already made.

Some nations allege that the consultation team and Minister Sohi were dishonest during the consultation, and that the nations were provided with doctored documents.

Regulatory legal errors

Regulatory errors include: the NEB’s failure, once again, to correctly scope marine shipping during their reconsideration while continuing to rely on stale dated evidence to justify the environmental degradation and risks associated with TMX.

In particular, the NEB limited their review to 12 nautical miles instead of the 200 nautical mile Exclusive Economic Zone, contrary to the requirements of the Canadian Environmental Assessment Act 2012 (CEAA 2012). This had the effect of cutting the Southern Resident Killer Whales’ critical habit in half. Applicants also argue that the Species at Risk Act has not been applied correctly.

The NEB refused to consider updated economic evidence in the reconsideration, instead continuing to rely on the stale dated evidence produced by Kinder Morgan in 2016. The needs assessment is inconsistent with Paris Climate Agreement GHG reductions targets.

These errors result in the NEB’s reconsideration report failing to qualify as a ‘report’ that cabinet could rely on, which is what the FCA held in their 2018 decision when the NEB scoped their review to exclude marine shipping.