Trudeau government won’t appeal court decision that quashed Trans Mountain

Government relaunches consultations, but says First Nations won’t get a veto.
October 3, 2018, 2:52pm

The federal government has decided not to appeal the court decision that quashed the approval of the Trans Mountain pipeline expansion.

Instead, the government will do what the Federal Court of Appeal said, and conduct “meaningful and focused” consultations with Indigenous groups on the project, Natural Resources Minister Amarjeet Sohi told reporters Wednesday morning. The government has appointed a former Supreme Court judge to oversee those consultations.


But Sohi added: First Nations groups will not have a veto on the project.

“There might be groups that will still oppose this project,” he told reporters. “That’s fine because that’s their right to do so, but that does not mean, if we fulfill our obligations, these groups have a veto to stop the project.”

On August 30, the Federal Court of Appeal overturned Canada’s approval of the pipeline expansion project, saying the last phase of its consultations, phase three, “fell well short of the mark set by the Supreme Court of Canada.” The same day, Kinder Morgan Canada shareholders overwhelmingly voted to sell the existing pipeline and expansion to Canada for $4.5 billion, and the company suspended construction on the project. Prime Minister Justin Trudeau has insisted “there is a very strong business case for this pipeline.”

Trudeau is under pressure to get Alberta oil to the west coast, where it can be sold to international markets rather than at a discount to the U.S., but First Nations groups and environmental activists in B.C. have opposed the expansion project because they say it threatens sensitive ecosystems, and tramples on Indigenous rights.

"That does not mean, if we fulfill our obligations, these groups have a veto to stop the project.”

Wednesday’s announcement comes in the wake of the government’s decision last month to ask the National Energy Board to reconsider its review that the Federal Court of Appeal found had “unjustifiably” excluded marine tanker traffic from its review. That NEB review must be done within 22 weeks, in time for the Alberta election.

Consultations will be different this time, Sohi said.


Government representatives on the ground will have a mandate to conduct “meaningful” consultations, and be empowered to discuss “reasonable accommodations” with Indigenous groups. The government will ask First Nations and Metis communities how they can get phase three consultations right, Sohi continued. And the government is doubling the capacity of its consultation teams, with expertise inside and outside of government.

“Consultations will be specifically tailored to the groups we meet,” the minister said.

Former Supreme Court justice Frank Iacobucci will oversee the process.

“Let me be clear, we are not starting over,” Sohi said. “We are building on the relationship we have, the information we have gathered and the consultation done to date.”

Sohi said there is no deadline on when the consultations must end.

With an Alberta election coming in March, and a federal election next October, Trudeau’s government is racing to restart pipeline construction.

On Sept. 24, opposition leader Andrew Scheer said Trudeau should immediately appoint a ministerial special representative to complete First Nation consultations as soon as possible; enact emergency legislation to affirm Transport Canada’s analysis of shipping traffic was sufficient; appeal the court decision, and support Bill S-245 to assert that pipelines are federal jurisdiction.

Cover image of Prime Minister Justin Trudeau commenting on the government's Trans Mountain Pipeline plan as he makes his way to caucus on Parliarment Hill in Ottawa, Wednesday, October 3, 2018. Adrian Wyld/The Canadian Press