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Federal Court of Appeal quashes Trans Mountain approval, calls it ‘unjustified failure’ in win for First Nations, environmentalists

The Federal Court of Appeals has sided with pipeline opponents Thursday morning in a pivotal case against the controversial Trans Mountain pipeline.

The long-awaited decision was one of the pipeline’s greatest legal hurdles to date — after having been green-lit by both federal and the previous provincial governments — and was released the same day as Kinder Morgan’s shareholders vote in Houston on selling the pipeline to Canada for $4.5 billion.

The decision means the National Energy Board will have to redo its review of Kinder Morgan Canada’s project.

In a win for First Nations and environmentalists the court ruled both that Canada did not fulfil its obligation to consult with the Indigenous communities involved in the case and failed to fully assess the impacts of the project.

In particular, the court said it was an “unjustifiable failure” that the National Energy Board did not consider the environmental impacts the increased shipping traffic could have. This was a major concern for organizations and communities concerned about the fate of the endangered Southern Resident killer whales and the threat of a major diluted bitumen spill.

The court ultimately “quashed” the approval of the pipeline expansion and order that it be reconsidered.

But the judgment could be appealed one final time: to the Supreme Court of Canada.

Plans to expand the existing 1,100-kilometre pipeline would triple the flow of diluted bitumen and other oil products, sending 890,000 barrels a day from Alberta’s oilsands to Burnaby, B.C., and increase tanker traffic seven times through the Burrard Inlet.

The $7.4-billion expansion has led to years of bitter conflict, on one side B.C.’s NDP government, large municipalities Burnaby and Vancouver, numerous First Nations, and environmental organizations — and on the other side, pro-pipeline Alberta NDP and federal Liberal governments, the proponent, and people dependent on oil industry and construction jobs.

Trans Mountain has maintained its pipeline and associated oil tankers will meet world-class safety standards and that First Nations were consulted, dozens even signing benefit agreements for it to proceed.

Regulatory lawyer Bill Gallagher, author of Resource Rulers and the upcoming book Resource Reckoning, said the ruling was a “benchmark” in the rise of what he called “Native empowerment” over natural resources in Canada, after the demise of the abandoned Northern Gateway pipeline through B.C. amidst protests and lawsuits.

The cases, which were consolidated by the court, were brought by more than two dozen First Nations, municipal governments and environmental groups seeking to overturn the federal government’s decision.

One of the First Nations who took the Trans Mountain approval to court, Coldwater Indian Band, near Merritt, B.C. says the project puts its community water supply at risk, because the route runs through the reserve’s aquifer.

“I don’t regret anything about this,” said Chief Lee Spahan in a phone interview. “We’ve stood up for our people having our voices be heard. We’ve never given consent to this project.”

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