(CN) – Indigenous groups told judges in Canada that the government had not adequately consulted them about a proposed oil pipeline that they say could threaten their drinking water and harm endangered Southern Resident killer whales, which the groups hold sacred.
Attorneys for the government, meanwhile, accused the indigenous groups of delaying the legally required consultation process.
The Trans Mountain Pipeline began shipping 150,000 barrels per day in 1953, before its capacity was doubled in 2008. Owner Kinder Morgan Canada sought another expansion to triple capacity between Alberta’s oil sands and a shipping terminal in Vancouver, British Columbia. Canada’s National Energy Board approved the project in 2016 and Prime Minister Justin Trudeau issued his own green light soon after.
The expanded, 610-mile pipeline would carry diluted bitumen – a type of crude oil the consistency of peanut butter. Unlike oil, which floats, bitumen sinks, making it nearly impossible to remove from waterways once it is spilled. That is of particular concern to First Nations who say spills and ship noise could be detrimental for endangered Southern Resident killer whales. They also say the project threatens their drinking water and the survival of salmon, upon which the endangered orca whales depend.
After fierce opposition from indigenous groups, the local government in British Columbia, as well as members of the Green Party and the progressive New Democrats, Kinder Morgan suspended the project. So Trudeau’s administration inked a $4.5 billion deal to buy the pipeline in 2018.
In a speech two weeks ago outlining the priorities of his new administration, Trudeau said fighting climate change is his top priority. But he also said Canada needed to continue to export fossil fuels – in part to fund the country’s transition to a greener economy.
Three months after the government bought the pipeline, Canada’s Federal Court of Appeal overturned Trudeau’s approval of the expansion project, finding that the government failed to adequately consult indigenous groups on their concerns about the project. The government ordered a second environmental assessment and in June Trudeau’s administration again approved the project.
But four indigenous groups – the Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band and a collective of Fraser Valley Stó:lō bands again challenged the project’s approval. Their lawyers told a three-judge panel for the Federal Court of Appeal in Vancouver that the government had again failed to seriously grapple with their concerns. They claimed the government had rushed the consultation process in order to approve a project it had been determined to promote all along.
During the three-day hearing, attorneys for Canada said there were months of communication between the government and First Nations and that Canada had complied with the first court ruling.
“This court said Canada needed to meaningfully consider and conduct consultation,” Sarah Bird, counsel for the attorney general of Canada, said Tuesday. “But it did not lay out the precise way to do it. The fact that they are not happy with the result does not mean meaningful consultation didn’t happen.”
Government lawyers pointed to a host of initiatives the government has planned to reduce the project’s environmental impact, including the Quiet Vessel Initiative, under which Canada will partner with shipping operators to develop tankers intended to produce less underwater noise, which prevents whales and other marine mammals from communicating and using echolocation to find food.
But lawyers for the First Nations said such future measures did not replace Canada’s legal obligation to develop concrete answers to its concerns before approving the project. They added that Canada hid results from its own government scientists who shared First Nations’ concerns about the project’s effects on the Fraser River aquifer.
Scott Smith, attorney for the Tsleil-Waututh, said Wednesday that the government had not done the science required to determine exactly how to prevent and respond to oil spills or to reduce harm to whales from marine shipping.
“In many if not all cases, Tsleil-Watuth and Canada’s own experts agreed those issues were residual and required more work,” Smith told the judges. “Canada has no idea whatsoever whether the Quiet Vessel Initiative and its other initiatives will reduce impacts on whales. What we do know is the whales are endangered, they are on the precipice of extinction and they face an imminent threat to their survival and recovery based on current conditions. That’s without the 13.9% increase in marine shipping that will result from this project.”
The court did not indicate when it would issue a ruling.Follow @@karinapdx
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.