Pipe for the Trans Mountain pipeline is unloaded in Edson, Alta., in June. (Jason Franson/The Canadian Press)
The Federal Court of Appeal has agreed to hear appeals from
opponents determined to overturn the Liberal government's approval of
the Trans Mountain pipeline expansion project.
It's
another legal hurdle for the long-delayed project — which, if it's
built, will carry nearly a million barrels of oil per day from Alberta
to B.C.'s coast.
The court has agreed to take up simultaneously six of 12 possible appeals to the federal cabinet's decision.
The
court said it would hear evidence on whether the federal government
adequately consulted with Indigenous peoples before approving the
project for a second time in June — consultations that have since been
described by critics as "window-dressing, box-ticking and nice-sounding
words."
While the federal Liberal cabinet has now twice approved
the project, Attorney General David Lametti "took no position for or
against the leave motions brought by the Indigenous and First Nation
applicants," the court said.
As of two weeks ago, some construction work was already underway. The Crown corporation that now owns the line has said it will be finished by mid-2022.
That
timeline could now be in jeopardy if the B.C.-based Indigenous groups —
including the Coldwater Indian Band, the Squamish Nation, the
Tsleil-Wautuh Nation, the Upper Nicola Band and the Secwepemc
Nation — are again successful in convincing the Federal Court to quash
cabinet approvals and nullify construction permits.
A first nations canoe paddles near Trans Mountain's Westridge Marine Terminal in Burnaby, British Columbia in May 2019. (Ben Nelms/CBC)
"The
court has ordered that the challenges proceed on an expedited basis.
Short and strict deadlines for the steps in the litigation will be set,"
the court said in a short one-page news release Wednesday.
The
court said the parties seeking an appeal have just seven days to file
their applications for a judicial review, a timeline the court conceded
is "extremely short."
"There
is a substantial public interest in having the upcoming proceedings
decided very quickly one way or the other," the court said.
Despite
the potential for more delays through a court-ordered work stoppage,
the Crown corporation building Trans Mountain said it is business as
usual for now.
"As these cases make their way through the
courts, we will continue with all aspects of planning and construction.
The applications are challenging the decisions made by the Canada Energy
Regulator and the federal government, but do not in and of themselves
negate the pre-existing approvals provided by those governmental
authorities until and unless the court rules otherwise," a spokesperson
said.
Indigenous consultations at issue again
In a highly unusual move, the court also posted its legal reasons for agreeing to hear the appeals.
It said that Indigenous groups raised serious concerns about the federal Liberal government's re-do of the consultation process.
After the shock Federal Court decision last August,
the government tasked retired Supreme Court justice Frank Iacobucci
with leading the team of 60 Crown consultants who fanned out across
Alberta and B.C. to meet with First Nations and Métis communities to
document concerns and put forward recommendations that could mitigate
the effects of this project.
"In their evidence, consisting of
many thousands of detailed pages, the Indigenous and First Nations
applicants point with considerable particularity and detail to issues
they say were important to them.
They say the Government of Canada
ignored these issues in the original process of consultation and ignored
them again in the further consultation process. They add that little or
nothing was done in the process of further consultation," Justice David
Stratas said in the decision.
"In their view, the time left for
the further consultation process, roughly four months, was insufficient
to address the shortcomings identified by this Court in Tsleil-Waututh Nation. Even during these four months, some of the applicants allege inactivity by the Government of Canada."
The
ruling said Indigenous peoples opposed to the project told the court
they believe much of what the Liberal government did to address ongoing
concerns — the Iacobucci-led consultation team, for one — was "just
window-dressing, box-ticking and nice-sounding words, not the hard work
of taking on board their concerns, exploring possible solutions, and
collaborating to get to a better place."
No federal intervention in appeals process
The
court said the attorney general did state that if the leaves to appeal
were successful, and the opponents applied for a judicial review, the
government would defend cabinet's decision.
"But on the leave motions they offered no submissions or evidence to assist the court," Stratas said.
"Therefore,
this court must conclude that the issue of adequacy of the further
consultations ... meets the 'fairly arguable' standard for leave," he
said.
Conservative Alberta MP Michelle Rempel said by failing to
intervene in the appeals process the Liberal government "confirmed our
worst suspicions."
"Today we found out Justin Trudeau rolled
over and refused to stand up for the Trans Mountain pipeline in court —
not submitting a defence against 11 motions to overturn the approval of
the project," Rempel said.
"Trudeau never had any intention of
seeing this pipeline built, but spent billions of tax dollars to kick
the issue past the election. No one, on any side of the pipeline debate,
should trust Justin Trudeau," she said.
The
Federal Court of Appeal said Attorney General David Lametti "took no
position for or against the leave motions brought by the Indigenous and
First Nation applicants ... on the leave motions they offered no
submissions or evidence to assist the court," the court said. (CBC)
When
asked why the government did not try to head off another appeal by
vigorously making its case in court, Natural Resources Minister Amarjeet
Sohi said it was waiting to make such argument at "the right time."
"We
want courts to decide who should have the right to appeal and who
should not have the right to appeal at all," he said in an interview
with CBC News Network's Power & Politics.
"We will
be mounting that defence and at that time we will defend that record. We
have a very strong record on these consultations and we responded to
every legitimate concern that communities have identified. We have done
everything right and I am confident we will continue to proceed. It will
be completed by the middle of 2022."
While a troubling
development for oil patch boosters, the court's decision was a major
victory for some B.C. Indigenous peoples who have long opposed twinning
the pipeline.
Leah George-Wilson, the chief of the
Tsleil-Waututh Nation, near Vancouver, welcomed the decision to grant
leave to appeal saying it's an "important step for defending our
rights."
"We
are confident that the court will once again decide in our favour.
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. Canada continued to do the legal minimum and in
our view, fell well below the mark again," she said in a statement.
This
Federal Court decision comes a year after the very same court quashed
the federal cabinet's initial approval of the project — also citing
inadequate consultations with Indigenous peoples affected by the
project's construction.
The author of that decision, Justice
Eleanor Dawson, did not mince words in her ruling, describing the
Trudeau government's Indigenous consultation efforts as a
"failure" and using that word well over 100 times in a 272-page
decision.
While the majority of First Nations communities along
the project's route have accepted the project and signed impact benefit
agreements with the proponent — now a Crown-owned entity — some have
flagged the potentially devastating effects of a spill on their
traditional lands or in their waters as a risk factor demanding more
accommodations.
Chief
Leah George-Wilson of the Tsleil-Waututh Nation and several other
Indigenous leaders discuss their court appeal of the latest Trans
Mountain pipeline decision. (Maggie MacPherson/CBC)
Also in that 2018 decision,
the court found the NEB's assessment of the project was so flawed — it
did not consider the impact on marine life in B.C. waters — that it
should not have been relied upon by the federal cabinet when it
gave final approval to proceed in November 2016.
However, on
Wednesday the court dismissed appeals centred on claims that the NEB did
not do enough to address environmental and marine life concerns, saying
that the agency, which has since been renamed the Canadian Energy
Regulator, did prepare a substantial report for cabinet to review this
time.
"Since this court's decision in Tsleil-Waututh Nation,
the National Energy Board addressed this material deficiency by
providing a comprehensive, detail-laden, 678-page report to the Governor
in Council," Stratas said.
In rejecting another avenue for
appeal, the court also dismissed a claim that cabinet was in a
conflict-of-interest position because the government now owns the
project, saying the governor-in-council (cabinet) is not the same as the
Government of Canada.
The country's oil and gas sector is
facing a serious pipeline capacity crunch, with all of the major export
projects, including TC Energy's Keystone XL and Enbridge's Line 3, beset
by delays.
The Liberal government bought the Trans Mountain
expansion from its original U.S. proponent, Kinder Morgan, in 2018 after
that company threatened to end all essential spending on the project in
response to strident opposition from B.C.'s provincial NDP government.
Prime Minister Justin Trudeau has said the project will eventually be built "in the right way."
Trudeau
has said building the project, which would help deliver Canadian oil to
tidewater for shipment to lucrative markets in Asia, will ensure Canada
is not dependent on selling its natural resources to one customer — the
United States.
The government has committed to directing every
single dollar the federal government earns from the pipeline — which, if
it's ever built, is estimated to be some $500 million a year in federal
corporate tax revenue alone — to investments in unspecified clean
energy projects.
Methinks
Mr Prime Minister Trudeau The Younger and his Ministers and all their
politcal foes know why I am enjoying this circus N'esy Pas?
Terry Jeffery
Let’s
see the treaty the Queen signed with First Nation before oil was
discovered besides the oil and Government can say or do anything about
the right to put piplines on their lands.
David Amos
Reply to @Terry Jeffery: Go Figure
"The author of that decision, Justice Eleanor Dawson, did not mince
words in her ruling, describing the Trudeau government's Indigenous
consultation efforts as a "failure" and using that word well over 100
times in a 272-page decision."
Alfred Frey
The
Liberals are conceding the court's choice of those with the right to
apply for judicial review. Why would they oppose that? It's kind of
the usual suspects anyways. They heard appeals before.
David Amos
Reply to @Alfred Frey: Methinks they hope it is delayed for many years and they can blame the court for the delay N'esy Pas?
Earl Higgins
A Million barrels, is that the same number as the number of acres the Koch Brothers control in the tar sands?
R0bert Wilson
Reply to @Earl Higgins:
Koch industries sold their oil sands leases and licences a few weeks ago. So they now control zero up there.
David Amos
Reply to @R0bert Wilson: Interesting if true
Alfred Frey
If
the opposition hadn't burned so much powder wailing against "political
interference" Rempel wouldn't have so many people scratching their heads
this time around.
David Amos
Reply to @Alfred Frey: True
Brian Duog
Attorney
General David Lametti "took no position for or against the leave
motions brought by the Indigenous and First Nation applicants," the
court said.
-seems like the government is doing it can to prevent the pipeline while looking like they want it ?
David Amos
Reply to @brian duog: Methinks many folks have noticed that seems to be the case N'esy Pas?
Michael
Robert
Where is Andy on this ?
Quiet as usual and letting his minnows do the talking.
But he has pledged to get pipelines built.
Diego Odorizzi
Reply to @Michael
Robert: .. he’s pledged to use the constitutional powers afforded the
government t get the pipeline done. Something that JT doesn’t have the
b—lls to do
David Amos
Reply to @Diego Odorizzi: Oh So True
Michael
Robert
Rempel on the rant as per usual.
The Libs heavily condemned over trying to interfere over SNC and she says the AG should have been involved in this case.
David Amos
Reply to @Michael Robert: Methinks Rempel can cry quite a river N'esy Pas?
Jay Moeller
Ok
so what I would like to know is this... If this project is only going
to start in a year or two (best case), take another +- 5 years to
complete, while many advanced economies are looking to have all electric
cars by 2030, how exactly is this going to make economic sense?? just
always wondered...
Alfred Frey
Reply to @Jay Moeller: It's scheduled to complete in 2022. This development doesn't change that.
Steve Vaughan
Reply to @Alfred Frey: How do you know that?
Alfred Frey
Reply to @Steve Vaughan: because nothing's changed
Jay Moeller
Reply to @Alfred
Frey: The track record of major projects would suggest that that local
and federal gov will not keep it on budget or on time... and by 2025 oil
could be free falling for all we know... it is a good investment of tax
dollars??
Edward B
Reply to @Jay
Moeller: There is a good chance oil will not be in free fall by then,
and that doesnt hurt this pipeline, the federal government will still
get a toll from companies shipping on it.
David Allan
Reply to @Jay Moeller:
Oil has many more uses than just gasoline for personal cars.
David Allan
Reply to @Alfred Frey:
In project management, a critical path is the sequence of project
network activities which add up to the longest overall duration,
regardless if that longest duration has float or not. This determines
the shortest time possible to complete the project.
Manley Man
Reply to @Jay Moeller:
that's just it. within a decade it will be a stranded asset.
china knows the key to energy independence is electrification.
and it's neighbouring countries will be right there as chinese influence through the 1 belt 1 road campaign brings them in.
you can't have millions of fossil burning vehicles in cities without killing people.
and ten euro countries who also are banning sales of fossil fueled transportation by 2025 or 2030.
it's a dead end for fossils as energy choice.
it would have to drop to 10$ bbl to be able to compete with elecricity for transportation.
Manley Man
Reply to @David Allan:
ebnergy is what drives the biggest demand.
and within a decade, that will hange greatly.
energy independence comes with electrification.
Jay Moeller
Reply to @David Allan:
All good and well, and yes I know oil has a million other uses, but
there are also just so many producers who aren't going to just cede
market share especially in a shrinking market. Regarding the CPR, I
imagined ti was to determine the shortest possible path and even when
contingencies are accounted for, government manages to make the unlikely
possible when dealing with delays... Look it will definitely make
money, but is it the best return on investment? That's the real question
here?
Alfred Frey
Reply to @David Allan: You think the planners don't know that?
Diego
Odorizzi
Reply to @Jay
Moeller: ..do you honestly believe 50% of all drivers on the planet can
afford to buy a new vehicle in the next 10 years?...let alone 100%?
Jay
Moeller
Reply to @Diego
Odorizzi: Well if china (including others) have already started the
transition (are on track currently) and should be set to be completely
electric by 2030, is there any reason that a country cannot?? It's only
really the US and Canada that have set their time frames so far back
(2040 for canada not including pickups and semis and no plan for US). I
think most of Europe is on similar trajectory as China and India is also
making big strides... Once again really just North America who`s
dragging their feet.. So yes I think it is not just doable but actually
being done...
Manley Man
Reply to @Diego Odorizzi:
sales of fossils will be banned in a decade. not fossil vehicles yet.
another decade or 2 to totally phase them out.
but the shift will be great enough to stop the rise in the need for petrol.
we are at peak demand already.
in the next 5 years we will see dropping demand.
Diego
Odorizzi
Reply to @Manley Man:
If I understand your comment, your saying that the sale of fossil fuels
will be banned in a decade...but not fossil fuel vehicles?...I hope
that’s not what your saying
Diego
Odorizzi
Reply to @Jay
Moeller: ..China will not be 100% electric by 2030. This article that
came out this week should throw cold water on that assumption.
Reply to @Jay
Moeller: Hopefully we will get a better price for our oil instead of
giving it to Yankees at two thirds the value as per the dumb NAFTA deals
N'esy Pas?
David Amos
Reply to @Diego
Odorizzi: Methinks I would have fun arguing the myth fossil fuels with
many greasy gassy oily lawyers in Federal Court Perhaps I should
intervene in the matter N'esy Pas?
Jay
Moeller
Reply to @Diego
Odorizzi: You are right... partly.. They will not be 100% electric, but
by 2030 all vehicles manufactured will have to be. Now yes there is
still money in oil as it produces a myriad of goods. The argument here
however is, is it the best investment Canada and Alberta can make, it is
a dying industry- why invest in the past? Now China would want to
reduce their dependency on the US oil but be serious when asking
yourself if it makes sense not to invest in alternate job markets and
skills development??
Jay
Moeller
Reply to @David Amos:
Canada probably will for a little while and then they'll need to
reorient the jobs and skills for an entire province... again... it's
really just a race to the bottom..
David Amos
Reply to @Jay
Moeller: I disagree Whether it be it a fossil fuel or not methinks we
will always be in need of oil as will the rest of the world We should
develop our own resources for our benefit first and foremost and sell
the extra for a fair profit I believe that is common sense N'esy Pas?
Sally Ride
Let's
not have any pipelines at all. Lets let ethical Saudi Arabia oil solve
all our energy problems. God forbid Canada become self sufficient.
Stanley Baird
Reply
to @Sally Ride: Time to declare this project to be in the national
interest and move on as should have been done years ago.
David Amos
Reply to @Stanley Baird: I concur
Sandy Gillis
Reply to @Sally Ride:
What's the actual point of the whole "Do you use oil products" question?
I see it over and over in any discussion about the oil and gas industry
in Canada or fossil fuel use in general.
Are you trying to say that, if we use oil products but speak out against oil companies, that we're some sort of hypocrites?
So, to follow your reasoning, if I were to ever watch a TV show or
movie, I must at all times make my home and property available for use
by TV and film production companies? I've used their products, maybe I
even do it daily, so I'd be a hypocrite if i tried to limit their access
or power in any way, right?
People can use oil products and still demand reasonable limits be set on
the operations of oil and gas producers and suppliers. People can use
oil products and still demand that government hold them to account for
their actions. People can use oil products and still call for
alternatives. There's no hypocrisy involved, it's not an all or nothing
issue.
Sally Ride
Reply to @Sandy Gillis: slightly pregnant.
David Amos
Reply to @Sandy Gillis: Methinks if you wish to recall you don't know Federal Court like I do N'esy Pas?
Shirley Witt
This country is economically being paralyzed by stupidity!
David Amos
Reply to @Shirley Witt: Surprise Surprise Surprise
Mo Bennett
Reply to @Shirley Witt: you left out the politician part to complete yer sentence.
David Amos
Reply to @mo bennett: YO MO Methinks you and Mr Prime Minister Trudeau The Younger know why I seldom do N'esy Pas?
Adam Carver
Those
that say that there were not enough consultations I disagree. This
story has been headlines for years, you've had your chance time to move
on.
Jeff Rutledge
Content disabled before I saved it
Bart Roberts
Reply
to @Jeff Rutledge: Straw man. There's a huge difference between "enough
consultations" and "consulting enough". There have been exercise clubs
for years, you've had your chance so why are you so out of shape?
Jeff Rutledge
Content disabled before I saved it
Bart Roberts
Reply
to @Jeff Rutledge: Too many people decide things "on a personal note"
without considering how they're accountable for more than just their own
person, it seems. The right to swing fists ends where anyone else's
nose begins.
Legitimate consultation is consultative, not just sitting around running
out the clock mocking and ignoring what's being said by others. Is
there any legitimate consultation in pipelines? Really?
The NEB heard that pipelines would do irreversible harms, but still
overruled that with some imagined "national interest" that it never
actually established, but only assumed. The nation can do fine without
fossil fume emissions, and recover from the transition to fossil free
well. The nation without forests, farms, fisheries, whales.. that's
something we will not recover from, and that is what pipelines will
cause.
Stanley Baird
Reply
to @Jeff Rutledge: some think consultations mean a veto power. Time
for a decision (again) and yes some will be unhappy but we all will be
better off to stop giving away our oil to the US.
David Amos
Reply to @Jeff Rutledge: YUP
Van Collins
Reply to @Jeff Rutledge:
The National Energy Board failed in this process and that's why it's still being dragged through the mud.
Michele McLean
Reply to @Jeff Rutledge:
The story is that there weren't sufficient consultations. That's the story.
David Amos
Reply
to @Van Collins: Methinks everybody knows everything political is
always about the money Whereas the writ is about to be dropped what
better time to go for the gold N'esy Pas?
Chris Spring
Trans Mountain going nowhere is just what JT wants. As long as it is tied up in court, he doesn't have to deal with it.
Sally Ride
Reply to @Chris Spring: No jobs for Canadians req'd west of the Quebec/Ontario border.
David Amos
Reply to @Chris Spring: YUP
Lorraine Karuse
Reply
to @Chris Spring: I support this pipeline AND the one to Eastern
Canada. DON'T blame JT for this. People living around that pipeline have
issues they want resolved
Joan Watkins
Reply to @Sally Ride:
Ontario supports both Trans Mountain & Energy East. It's Quebec
and British Columbia that don't want them. Quebec has hydro electric
and B.C. wants to fill their own pipelines with their natural gas.
John Oaktree
Reply to @Chris Spring:
Ya - he paid $7 billion and went through all the hard work of approving the pipeline because he doesn't want it?????
And this makes sense to you???
I guess Andrew Scheer does NOT want to be Prime Minister. He's working too hard at it...
John Oaktree
Reply to @Joan Watkins:
Quebec gets 30% of their oil from Alberta.
And I agree - they should cut out the Saudis and buy the rest of their oil from Newfoundland and Labrador.
Newfoundland and Labrador is closer and already has established shipping
routes AND, it's conventional oil which is easier to refine.
John Oaktree
Reply to @Joan Watkins:
BTW - don't you remember the days when Alberta told the east "you'll
freeze in the dark before you get a drop of Alberta oil"???
I do.
Funny how they're BEGGING us to buy it now...
David Mccaig
Reply to @Sally Ride:
Quote "No jobs for Canadians req'd west of the Quebec/Ontario border."
ALBERTA promised jobs if Trudeau bought the pipeline and showered the
oil path with billions of welfare. WELL GUESS WHAT, over the last 4
years the tar sands has shipped 4 billion barrels of oil to market and
Alberta's STILL in a recession, STILL no new jobs, STILL high
unemployment.
David Amos
Reply
to @John Oaktree: Methinks Mr Spring is correct about Trudeau and you
are correct about Scheer Hence I should run again However even though an
Independent can never be a Prime Minister I should not miss the chance
to play my part in this Circus N'esy Pas?
Kevin Lacroix
Just
build the darn thing. If not then shut down the ports in BC. Cruise
ships are increasing in the area, ferry routes increasing. You cant
have it both ways.
Lets not forget about the most recent train derailments as well.
David Amos
Reply to @Kevin Lacroix: I agree
Harry Harrison There
has never been a spill from the dock at Trans Mountain's marine
terminal in 60 years of operations. As far as a risk assessment goes it
doesn't get any better than that. The courts have got to throw all these
challenges out and the courts have got to realize these zealots will
never be onboard. So far the court challenges are 17-0 in the pipelines
favour.
David Amos
Reply to @Harry Harrison: Methinks the circus must go on at least until after the election N'esy Pas?
Garth Peter Hasn’t this cost enough money already, get the thing built.
David Amos
Reply to @Garth Peter: Methinks any circus overseen by politicians always costs a lot of money N'esy Pas?
Richard
Dekkar Yet more economy destroying delays funded fully by foreign eco billionaires and agitators.
Kyle Billing
Reply to @Richard Dekkar:
What more?
Your opinion(some would call a conspiracy theory)looks to me like something the NRA(a lobby group and nothing else) would say.
Jack Smak
Content disabled before I saved it
Kyle Billing
Reply to @Jack Smak:
Oh, Zing.
Now how about a sensible, coherent, relative retort?
Andrew Burgess
Reply to @Kyle Billing: we are waiting for yours first mr.nation
Kyle Billing
Reply to @Andrew Burgess:
Sticks and stones Drew.
Luther
Blisset
Reply to @Richard
Dekkar: Sorry but the groups with standing for this appeal are not
foreign, but are actually sovereign nations who are occupied. Do your
homework before you spread fake news.
David Amos
Reply to @Richard Dekkar: YUP
David Amos
Reply to @Luther
Blisset: Methinks you should do a little homework yourself Federal Court
File No T-1557-15 would be a find place to start in order to ask a few
questions before the writ is dropped N'esy Pas?
Andrew Burgess Build it!!!!
David Amos
Reply to @Andrew Burgess: Methinks many agree with you N'esy Pas?
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