A trio of B.C. First Nations expressed disappointment Thursday after learning the Supreme Court of Canada denied their application to challenge a Federal Court of Appeal decision on the Trans Mountain pipeline expansion.
Leadership from the First Nations — Squamish, Tsleil-Waututh and Coldwater — now say they’ll be turning their attention to other potential legal options.
Chris Lewis, an elected councillor and spokesperson for the Squamish Nation, said the dismissal of their case sends a message “that consultation and accommodation and reconciliation with Indigenous peoples isn’t a matter of national interest.”
“To say we’re disappointed is an understatement,” he said.
The Supreme Court determines what cases it will hear. It does not give reasons when it rejects applicants who are seeking leave to appeal decisions made by lower courts.
In their application, the First Nations asked the Supreme Court to scrutinize a decision by the Federal Court of Appeal in February that dismissed their challenge of the pipeline expansion, which was approved by Ottawa a year ago for the second time.
They had asked the Appeal Court to quash the second approval of the Trans Mountain expansion, arguing that the federal government had failed to conduct meaningful consultations with them about the project. The multibillion-dollar project, which is owned by Ottawa, would expand an existing oil pipeline from the Edmonton area to Burnaby, B.C.
The Appeal Court decided it would not interfere with the project’s approval. In its ruling, the court summarized the First Nations’ positions as trying to “impose a standard of perfection” on the consultation process.
The court applied new case law in assessing whether Canada had met its constitutional obligations to the First Nations. This raised broader concerns among the appellants regarding the legal standard for assessing the adequacy of consultation and accommodation.
Eugene Kung, a lawyer with West Coast Environmental Law, described the Appeal Court decision as creating “a watered-down consultation review process.”
Chief Leah George-Wilson of the Tsleil-Waututh Nation said, “What is happening is about more than just a risky pipeline and tanker project. We see this as a major setback for reconciliation.”
She said her First Nation’s decision to reject the pipeline expansion “will not be altered by a decision from the Canadian courts.”
“Our own Indigenous law is what brings us to where we are today,” she said.
Regulatory processes still underway
The First Nations’ leadership said they’ll now be turning their attention to other potential legal options. They didn’t say what those options might be during a news conference on Thursday, but Kung said there are still regulatory processes underway, such as detailed route hearings by the Canada Energy Regulator.
The route hearings are taking place for a segment of the expansion project through the Chilliwack area, where homeowners, a parent advisory council and the Semá:th First Nation are voicing opposition to the route over concerns about the impact on freshwater aquifers and cultural sites.
The route hearings don’t allow for debate about the approval of the pipeline but instead are meant to decide whether Trans Mountain is pursuing the “best possible route” for the twinning of the pipeline.
One of the applicants in the Supreme Court case, Coldwater, has been pushing for years to have the route of the pipeline expansion changed to avoid passing over the aquifer that residents rely on for drinking water.
“Despite today’s decision, there are further legal actions we can take if our water isn’t protected,” Coldwater Chief Lee Spahan said in a news release.
As First Nations expressed disappointment to Thursday’s court decision, others have publicly welcomed the news, including politicians in Alberta and Ottawa.
Trans Mountain CEO Ian Anderson wrote in a statement on Thursday, “We are pleased with the court’s decision to dismiss these applications and uphold the Federal Court of Appeal’s decision.”