The National Energy Board’s approval of the Trans Mountain pipeline expansion project has been overturned.
Canada failed to consult Indigenous groups in a meaningful way and erred in its environmental assessment, the Federal Court of Appeal ruled Thursday in a unanimous decision by a panel of three judges.
The National Energy Board’s (NEB) “critical error” was failing to include tanker traffic in the project’s review, the decision said. This was necessary in order to provide a complete assessment of the project’s environmental impacts.
Canada also “fell well short” of the Supreme Court’s benchmark for consultation with First Nations.
“Canada failed … to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns,” the court ruled.
The successful legal challenge combined applications from more than a dozen groups — including the City of Vancouver, multiple First Nations and environmental organizations — to send the project back to the consultation phase.
“This decision is a monumental win for the rights of Indigenous peoples and all of us who stand with them in firm opposition to a project that would massively increase climate pollution and put our coast at huge risk of oil spills,” Vancouver Mayor Gregor Robertson said in a release.
“This is a huge win,” lawyer Dyna Tuytel told HuffPost Canada on Thursday. She worked with Ecojustice, Living Oceans Society and Raincoast Conservation Foundation on the environmental case. “We are so happy with this decision.”
The increased tanker traffic poses a major risk to killer whales, Tuytel said, explaining that any underwater noise interferes with the species’ ability to communicate and find food.
The decision shows the federal government has a long way to go toward reconciliation, said Khelsilem, a spokesperson for co-applicant Squamish Nation.
“The Trudeau government failed in its rhetoric about reconciliation with First Nations’ and this court decision shows that,” Khelsilem said in a press release. “This decision reinforces our belief that the Trans Mountain Expansion Project must not proceed and we tell the Prime Minister to start listening and put an end to this type of relationship.”
Prime Minister Justin Trudeau’s government agreed to purchase the existing pipeline and assets for the expansion for $4.5 billion in May. Coincidentally, Kinder Morgan shareholders voted to approve the sale on Thursday, shortly after the court released its decision.
The ruling is likely to be appealed at the Supreme Court, which will take up to two years.
Meanwhile, construction that already began in central Alberta will have to stop. If the federal government wants to go ahead with the project, it will have to redo consultation and get the NEB’s approval all over again.
Protest and controversy have followed the project at every turn
The NDP premier in B.C. — concerned about potential risk of an oil spill — has been pitted against the NDP premier in Alberta — driven to protect her province’s economy. First Nations chiefs are divided. At least 41 Indigenous groups in the area have signed deals with Kinder Morgan, the company that currently owns the pipeline, but another 85 groups in the area have not.
The Coldwater First Nation has been fighting to protect its water supply.
The existing pipeline runs straight through the reserve, and the expansion would build new pipe over an aquifer that the nation relies on for drinking water. Kinder Morgan did not identify the aquifer in its environmental assessment and “pushed aside” Coldwater’s concerns, Chief Lee Spahan said.
Canada did not make an attempt to address Coldwater’s concerns, the court ruling stated.
“This is a major victory for my community. Until now our rights and our water have been disregarded by Kinder Morgan and the Government of Canada,” Chief Spahan said in a release Thursday. “Thankfully, the court has stepped in where Canada has failed to protect and respect our rights and our water.”
Morneau: Liberals ‘inherited’ flawed review process
At a press conference in Toronto Thursday, Finance Minister Bill Morneau said Liberals have worked to improve the “flawed environmental review process” he said they inherited from the previous Conservative government.
Morneau said the government will review the decision but made clear that Liberals intend to move forward on a project that he repeatedly said is in the national interest.
Asked if it is even possible for a private company to complete a major resource project in Canada anymore, Morneau suggested the Trans Mountain issue was a special case.
“This is a very specific project we’re talking about. We’re talking about a project that had risks between provinces that were difficult for a private sector actor to deal with,” he said. “We stepped in because we knew the project was in the national interest and there was a federal role in dealing with that.”
The finance minister said the federal government is “looking forward to moving forward on the purchase,” and that the deal could close as early as Friday.
This story was originally published here by HuffPost Canada. #TrackingTransMountain is a collaborative reporting project from The Discourse, APTN, and HuffPost Canada that aims to deepen the reporting on Indigenous communities affected by the Trans Mountain expansion project.