FYI.

This story is over 5 years old.

News

First Nation wants Trudeau government to release secret Trans Mountain documents

Legal battle against pipeline heats up after reports that the Liberal government "rigged" the approval process.
Canadian Press

The First Nation leading the legal fight against Kinder Morgan’s Trans Mountain pipeline expansion wants the Federal Court of Appeal to force the federal government to release secret documents that could undermine the project’s legal case.

It’s the latest threat to a project that Prime Minister Justin Trudeau has sworn will be built. His government is already on a tight timeline after the company gave it until May 31 to ensure the project has jurisdiction to be built through B.C.

Advertisement

Asked about the $7.4 billion expansion project during his visit to Vancouver on Monday, Trudeau again said the pipeline is in the national interest, because Canada needs new markets outside of the U.S. for its oil. The expansion project would triple the capacity of an existing pipeline, allowing more oil to flow from Alberta to the B.C. coast, where it can be sold to Asian markets. Trudeau stuck to talking points that the government is considering “a broad range of options” to move Trans Mountain forward.

Tsleil-Waututh, a First Nation with territory that encompasses Vancouver, has asked the court to allow a motion that, if granted, would order the government to produce documents detailing its decision to approve the pipeline expansion. In court documents obtained by VICE News, the First Nation argues the partially-redacted documents, released through ATIP and published by the National Observer, contain “evidence of bad faith and dishonourable conduct by Canada.” The First Nation is hoping that if the court agrees to hear it, the new evidence will convince the court to quash the pipeline’s approval, killing it altogether.

Over the weekend, Tsleil-Waututh filed a letter with the Federal Court of Appeal, citing media reports that suggest the government privately approved the project in October 2016 while it was still publicly consulting with Tsleil-Waututh and other nations. This month, the National Observer published several accounts from government whistleblowers saying the associate deputy minister told them to “give cabinet a legally-sound basis for saying ‘yes’” to the pipeline. At the time, the government was telling the public and Tsleil-Waututh it hadn’t made a decision yet and was taking their views on the project seriously in consultations.

Advertisement

For the project to have a solid legal case, the federal government must have adequately consulted with First Nations, according to a June 2016 Federal Court decision that rejected the National Energy Board’s approval of Enbridge’s Northern Gateway Pipeline. Trudeau’s government has repeatedly emphasized partnerships between Kinder Morgan and First Nations along the route, as he did again on Monday, but the June 2016 decision made it clear that the government cannot delegate its duty to consult to the company.

'MIND MADE UP'

In its letters to the Federal Court of Appeal, obtained by VICE News, Tsleil-Waututh states the new evidence in the National Observer “appears to substantiate” its claims in court that Canada had approached its consultation with “an insufficient mandate to consult and accommodate,” and “with a ‘closed mind’ or a ‘mind made up,’” which it argues would be “a breach of the honour of the Crown and/or procedural fairness.”

The April 26 letter states the new documents would corroborate evidence a government official gave during cross-examination that, in mid-November 2016, before the project was publicly approved, the government created a website announcing its approval, and didn’t create any website saying the opposite.

In its April 27th response to the First Nation’s letter, the Justice Department wouldn’t take a position on whether Tsleil-Waututh should be able to bring their motion forward. But the government says the court’s deadline for submitting evidence has long passed, and the proposed motion could delay the court’s decision.

In its April 27th response letter, Trans Mountain Pipeline ULC says the motion should be rejected, arguing it will cause “significant and unwarranted” delay and “significant prejudice” to the company’s project. The letter also states “it is highly unlikely” the motion will uncover additional evidence, raising the question of whether the company knows the contents of the unredacted documents or is merely speculating.

Responding to the government and the company on Sunday, the First Nation said it can file its motion quickly and doesn’t object to “proceeding in an expedited manner.” And in a jab at the company, Tsleil-Waututh lawyer Scott Smith said: “Trans Mountain is not in a position to make representations regarding what federal government documents do or do not exist, and whether the would have any influence on the result of the case.”