Indigenous Groups Lose Court Bid to Block Canada Pipeline

(CN) – Canada’s plan to triple the oil flowing through a government pipeline could move forward after a court dismissed challenges from four indigenous groups who claimed the project will poison their water and imperil endangered Southern Resident killer whales.

The Trans Mountain Pipeline Project would increase the capacity of an existing oil pipeline that runs from Edmonton, Alberta, to a coastal export facility in British Columbia. The government-owned pipeline can currently carry up to 300,000 barrels of oil each day. The expansion project would make possible a daily haul of 890,000 barrels of Alberta’s tar sands oil.

The Trans Mountain marine terminal in Burnaby, British Columbia, on May 29, 2018. (Jonathan Hayward/The Canadian Press via AP, File)

Trans Mountain was built in 1953 to move 150,000 barrels of oil. Prime Minister Justin Trudeau spearheaded a $4.5 billion deal to buy the pipeline in 2018, after then-owner Kinder Morgan suspended the expansion project amid fierce opposition from indigenous groups, the British Columbia government and Canada’s Green Party and progressive New Democrats.

Trudeau, who is heading a shaky coalition government after his Liberal party maintained power in elections last October, says fighting climate change is the top priority of his administration. But he also says Canada must continue to export fossil fuels to fund the transition to a greener economy.

That includes the diluted bitumen that comes from Alberta’s tar sands region. Heavier and stickier than other types of crude oil, diluted bitumen has the consistency of peanut butter, is harder to clean up if it spills and is especially destructive in waterways.

The diluted bitumen transported in the Trans Mountain Pipeline would be carried over dozens of streams and rivers in the territories of indigenous groups before being shipped through the Salish Sea — home to critically endangered Southern Resident killer whales.

Rueben George, program manager of Tsleil-Waututh Sacred Trust — one of four indigenous groups who filed the challenge dismissed Tuesday, said it’s up to Canada’s indigenous groups to lead the way toward a sustainable future.

“This government is incapable of making sound decisions for our future generations,” George said at a press conference Tuesday. “But we are and we will. Even for their children.”

Canada’s Federal Court of Appeal originally overturned Trudeau’s approval of the project in 2018, just months after the government bought the pipeline. The court ordered the government to do a second environmental assessment and consult with indigenous groups about how the project could affect with their land.

In June, Trudeau’s administration again approved the project, after finding it was “in the public interest.” Four First Nations — Coldwater Indian Band, Squamish Nation, Tsleil-Waututh Nation and the Ts’elxwéyeqw Tribe, a collective of Fraser Valley Stó:lō villages — quickly filed another challenge, which the court allowed, but only on the narrow basis of considering whether the government had now fulfilled its legal obligation to consult with indigenous groups.

The groups appealed their other claim — that the new environmental assessment was inadequate — to the Supreme Court of Canada. That claim is still pending.

Lawyers for the indigenous groups argued before the Court of Appeals in December that the government had not seriously grappled with their concerns and had rushed to rubber-stamp a project it had always intended to approve. 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.

But the Federal Court of Appeals dismissed the claim Tuesday, finding the government had properly engaged in a new round of consultation with indigenous groups in the wake of the first ruling, and had based its second approval on new conditions intended to address indigenous concerns.

The government needed only address the “specific and focused” flaws in its first consultation process in order to fulfill its duty the second time around, the court wrote.

Chief Lee Spahan of the Coldwater Band disputed that assessment.

“What Canada considers meaningful consultation wasn’t meaningful at all,” Spahan said at a press conference following the release of the ruling. “Canada had their minds set already on this decision.”

The court also shrugged off that last contention — that the approval was a foregone conclusion because it was in the government’s interest to expand revenue from a pipeline it spent $4.5 billion to acquire. In its ruling, the court wrote the approval had come not from the government, but from the governor in council. That is, a member of the government appointed by the governor general, who in turn is appointed by the Queen of England.

“The governor in council is not the government of Canada,” the court wrote, quoting precedent. “The governor in council, the decision-maker here, does not own the project.”

Neither the office of the attorney general of Canada nor Natural Resources Canada, the wing of the government that runs Trans Mountain, responded to requests for comment.

Chief Leah George-Wilson said Tsleil-Waututh Nation is considering all options, including appealing the dismissal to the Supreme Court of Canada. Each of the four First Nations has 60 days to appeal.

“It’s not over,” George-Wilson said at Tuesday’s press conference. “Tsleil-Waututh will always exercise every legal option that we have.”

Dustin Rivers, council member and spokesman for the Squamish Nation, said there are options in addition to those that involve the courts.

“[British Columbia] has a long history of civil disobedience when it comes to environmental issues,” River said. “I think it’s important for the prime minister to consider that there are a lot of people who are willing to do a lot to defend our coast and defend our communities.”

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