The Federal Court of Appeal will decide on Tuesday whether the Trans Mountain expansion project lives or dies when it rules on an appeal from Indigenous communities who have long opposed its construction.
Four First Nations from B.C. filed court challenges last fall asking justices to overturn the federal cabinet’s second approval of the project.
The court will issue its decision at 1 p.m. ET.
While construction has already begun on key segments of the expansion, a ruling that sides with the Indigenous applicants would effectively halt all of that work. The court could order the federal government do more to bring Indigenous peoples onside with the $7.4 billion project, among other possible rulings.
The Indigenous communities challenging the project maintain that the Liberal government’s consultation efforts, led by former Supreme Court justice Frank Iacobucci and dozens of Crown consultants, were insufficient because they did not adequately consider their concerns about the risk of an oil spill.
The Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band and a coalition of small First Nations have said the constitutionally necessary consultations were akin to “window-dressing, box-ticking and nice-sounding words.”
The government has said the project, which will twin an existing line and carry nearly a million barrels of oil a day to the B.C. coast for export, is in the national interest and must be built to get Canadian oil to markets overseas.
Ottawa met with more than 117 communities along the project’s route and imposed conditions on the project — based on its consultations — to mitigate environmental risks and assuage worried Indigenous communities.
The Trans Mountain expansion project went through a years-long federal review by the National Energy Board (NEB) and the Canadian Environmental Assessment Agency (CEAA) and has been approved by the federal Liberal cabinet — twice.
Prime Minister Justin Trudeau has said the project is needed because it would help deliver Canadian oil to tidewater for shipment to lucrative markets in Asia, reducing price pressures on Alberta oil producers.
“To the hard-working men and women in natural resource sector — I know you’re facing tough times. We hear you. We’re going to keep working hard to get resources to market,” he said at a recent news conference.
The Federal Court of Appeal has already quashed cabinet approvals once before. In a stunning ruling in August 2018, judges nullified construction permits citing inadequate Indigenous consultation.
Justice Eleanor Dawson, who wrote the decision, did not mince words in her ruling, describing the Trudeau government’s first attempt at consultation a “failure” — and using that word well over 100 times in a 272-page decision.
Dawson called previous federal consultants glorified “note-takers” who recorded concerns without acting.
The previous Crown consultation team believed, erroneously, that it could not add more conditions to the project than those the NEB already imposed.
This time, Iacobucci and his team were empowered to turn feedback into action.
The project has already cleared one major legal hurdle at the Supreme Court. Last month, the top court dismissed B.C.’s appeal of a lower court decision that quashed provincial legislation designed to block the project.
B.C. Premier John Horgan has sought to stop construction of the expansion. His NDP government had drafted amendments to provincial environmental law to all but ban interprovincial shipments of heavy oil — bitumen and diluted bitumen — and other “hazardous substances” through pipelines, including the Crown-owned Trans Mountain.
The amendments would have required companies transporting these substances through B.C. to first obtain provincial permits.
The top court ruled that sort of legislation is unconstitutional because it sought to regulate a project that is clearly under the jurisdiction of the federal government.