Feb. 4, 2020

Federal Court dismisses claims and approves Trans Mountain

Well, how many times must a man go down . . .? Metaphorically speaking that is.

 Again the Courts approve the Trans Mountain Pipeline. Can we hope this is the end of the opposition? 

Here are some juicy tid bits from the decision that should give you the flavour of the whole thing :

‘53]  Put another way, reconciliation does not dictate any particular substantive outcome. Were it otherwise, Indigenous peoples would effectively have a veto over projects such as this one. The law is clear that no such veto exists (Haida Nation, paras. 62-63, citing R. v. Nikal, [1996] 1 S.C.R. 1013, 133 D.L.R. (4th) 658, para. 110; Chippewas of the Thames, para. 59; Ktunaxa Nation, para. 83; R v. Marshall, [1999] 3 S.C.R. 533, 179 D.L.R. (4th) 193, para. 43; Gitxaala Nation, para. 179; TWN 2018, para. 494; Yellowknives Dene First Nation, para. 56). At some juncture, a decision has to be made about a project and the adequacy of the consultation. Where there is genuine disagreement about whether a project is in the public interest, the law does not require that the interests of Indigenous peoples prevail.’

‘64]  In our view, the Governor in Council’s decision was reasonable. It is acceptable and defensible in light of both the outcome reached on the facts and the law and the justification offered in support.’

[‘77]  Contrary to what the applicants assert, this was anything but a rubber-stamping exercise. The end result was not a ratification of the earlier approval, but an approval with amended conditions flowing directly from the renewed consultation. It is true that the applicants are of the view that their concerns have not been fully met, but to insist on that happening is to impose a standard of perfection, a standard not required by law.’ 

‘78]  Significantly, the consultation process initiated by Canada invited the participation of 129 Indigenous groups potentially impacted by the Project and, in the end, more than 120 either support it or do not oppose it. As well, benefit agreements had been signed with 43 Indigenous groups as of June 22, 2019 (Explanatory Note, p. 43, second whole paragraph). The Governor in Council was entitled under section 54 to take this broad consensus into account in concluding that the Project was in the public interest. This is a factor that also speaks to the fact that the process that has taken place is consistent with the objectives of reconciliation and the honour of the Crown (Order in Council, p. 7, last whole paragraph).’

‘87]  Overall, each of the applicants’ detailed submissions fails for one or more of five reasons:

  • they raise matters that could have been raised before this Court in TWN 2018 but were not and, accordingly, the applicants are estopped from raising them now; 
  • they raise matters that were raised before this Court in TWN 2018 and that were dealt with by this Court; 
  • they raise matters outside of the scope of the issues the Leave Order permitted to be raised; 
  • they have no merit on their own terms; what is said to be unaddressed has in fact been adequately addressed by Canada; or 
  • they, alone or in combination with other matters, do not take away from the overall reasonableness of the Governor in Council’s decision that the duty to consult had been adequately met and that, overall, the Project is in the public interest.’