Providing coverage of Alaska and northern Canada's oil and gas industry
September 2019

Vol. 24, No.36 Week of September 15, 2019

The unending legal fight

Court gives First Nations another chance to show they’ve not been fully consulted

Gary Park

for Petroleum News

The legal roller-coaster ride by the Trans Mountain pipeline expansion project, TMX, has taken another downward lurch.

Canada’s Federal Court of Appeal has allowed an extension of legal challenges by six First Nations along the pipeline right of way against the latest re-approval of the project.

They continue to make a case that the government of Prime Minister Justin Trudeau has failed to properly consult them.

But the court denied six other applications focused on the potentially negative environmental impacts of TMX, especially to whale populations off the British Columbia coast, ruling those challenges were just attempts to re-litigate previous court cases.

Consult not consent

Justice David Stratas said in his written judgment that the “duty to consult does not require the consent ... of First Nations and Indigenous peoples before projects like (Trans Mountain) can proceed.”

“Under the duty to consult First Nations and Indigenous peoples do not have a right to veto the project,” he said.

Stratas said a project “is not to be hamstrung by multiple, unnecessary, long forays through the judicial system.”

To that end he said the review process will be expedited - some legal experts estimate it will take no longer than three months - and is not legal ground to stop work on the C$7.4 billion project to almost triple Trans Mountain’s capacity to export 890,000 barrels per day of oil sands bitumen to Asia.

Construction underway

Trans Mountain said construction is already underway at the Burnaby tanker terminal in the Port of Vancouver and more is scheduled to begin later in September on the right of way in Alberta.

It expressed confidence that “all certificates and approvals obtained to date (are valid).”

Tim McMillan, chief executive officer of the Canadian Association of Petroleum Producers, said that while his organization is disappointed with the court’s decision to grant an appeal, it is just a setback.

TMX has “already undergone a lengthy, thorough and extensive regulatory review process, including extensive consultation with all stakeholders. (The project) has been deemed to be in the best interest of all Canadians,” he said.

Government frustration

However, frustration within the Alberta government was aired by Energy Minister Sonya Savage who said the legal process is being reworked “over and over and over again. This is part of the game plan of some of these activist organizations” who repeatedly use litigation “until the project proponents give up.”

The Trudeau cabinet has twice approved TMX, which is set to come on stream by mid-2022, but that timeline could be in jeopardy if opponents continue their efforts to sway the courts and possibly take their cases to the Supreme Court of Canada.

Even the federal court was bothered that the Trudeau government - which is now the sole owner of TMX - had presented no legal submissions or evidence to counter First Nations’ claims that the consultations with them were inadequate.

Stratas wrote that the government and cabinet might have “strong evidence” to defend the adequacy of their consultations.

“At this time, however, the respondents have withheld their evidence and legal submissions on these points. So the analysis cannot progress further,” he said.

Brad Morse, dean of the law faculty at Thompson Rivers University in Kamloops, British Columbia, was sharply critical of the government’s failure to participate in the appeal, suggesting that might reflect Trudeau’s reluctance to oppose First Nations during a federal election campaign.

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