The seemingly endless legal exertions of several British Columbian Indian bands to block the Trans Mountain pipeline expansion (TMX) resumed before a panel of three Federal Court of Appeal judges in Vancouver this week. .In what has become the norm for Indigenous and environmental groups opposed to oil pipelines from Alberta to the west coast—pace the Northern Gateway fiasco—a dozen groups appealed the federal government’s June 18 “re-approval” of the TMX, which it bought from Kinder Morgan in July of 2017, on the familiar grounds of “insufficient consultation.”.But in a September decision that suggested the court may be growing a little impatient with these plaints, Appeal Court Justice David Stratas rejected six of the 12 appellants, including the City of Vancouver. He gave the remaining half dozen groups—all First Nations— seven days to file their paper work. Construction of the TMX, which began in August, was allowed to continue..Stratas limited the scope of the challenge to matters relating only to the feds’ consultation process, and not to various other issues that two of the bands – the Tseil Waututh and the Squamish nations—wanted heard, but which Stratas ruled had already been dealt with by the court. These included the bands’ claims that the National Energy Board’s environmental assessment process had been flawed. .Those two bands, both of whom are subsidized with money originating from the anti-oilsands Tides Foundation, remain among the appeal court appellants. But at the same time they have filed an application to have Stratas’ limitation appealed in the Supreme Court of Canada, which will decide in mid-January whether to hear the case..Since September two other of the six First Nations—the Upper Nicola Band, south of Kamloops, and the Kamloops Indian Band (aka Stk’emlupsemc te Secwepem) have dropped out of the Court of Appeal case, having reached accommodations with Trans Mountain, leaving four to challenge the Governor in Council’s (i.e. the federal cabinet’s) re-approval of the TMX. .Represented by a platoon of gowned, taxpayer supported lawyers at this week’s three-day hearing, the four groups are:.• The Tsleil Waututh Nation (pronounced “slay-wah-tooth” and abbreviated as TWN), the Metro Vancouver band enriched by its real estate developments on urban reserve land across Burrard Inlet from the Trans Mountain terminal. It claims an insufficiency of consultation on the likelihood of a tanker spill and the effects of a spill and increased traffic on killer whales with whom the band claims a “sacred relationship.”.• The Squamish Nation, another real-estate enriched coastal band whose claimed cetacean-centric concerns are similar to those of the Tsleil Waututh. .• The Coldwater Indian Band from near Merritt, which claims the second-round consultations, ordered by the court of appeal in its quashing of the TMX project in August 2017, failed to consider its argument for a re-routing of the pipeline to avoid crossing creeks feeding the aquifer that supplies the 300-member community with drinking water. .• The “Stó:lÅ Collective,” a coalition of 11 small tribes stretching about 200 kilometres along the lower Fraser River watershed from Burrard Inlet to the Coquihalla Highway. Stó:lÅ claims the government failed to properly consult it on the 89 recommendations in its “Integrated Cultural Assessment for the Proposed Trans Mountain Expansion Project” that sought to mitigate the project’s impact on its fishing rights and “cultural integrity.”.On Monday, the judicial panel, consisting of three, male, septuagenarians headed by Chief Justice Marc Noel (a Harper government appointee), listened to lawyers from three of the groups (Squamish was yet to come). The general thrust of their submissions was similar: the federal government had, as in the first go-round, failed to “meaningfully” engage the bands, had rushed through the process, behaved as if the pipeline approval was a foregone conclusion, and the “Phase 3” consultations were treated as a chore to be got out of the way ASAP. (The phase three consultations followed on the on the consultations that preceded the initial cabinet approval in 2016 then those that preceded last June’s re-approval.).The TWN lawyers claimed that the federal representatives had ignored evidence from the band’s experts that put the likelihood of tanker spill as high as 75%, maintained that diluted bitumen could sink and be irretrievable in one-to-two days, and that the noise from increased tanker traffic out of Burrard inlet and into the Strait of Georgia could threaten the survival of the orcas that are already “on the brink of extinction.” (Never mind the 100 or more ships that ply those lanes daily already.).Coldwater’s lawyers argued that the government’s representatives had given the band too little time to discuss the findings from their hired hydro-geological engineer that recommended alternative routes for the pipe that avoided crossing the creeks. (Never mind the fact that the existing Trans Mountain line has crossed creeks in their territory for 65 years without incident.). Trudeau on WE scandal: Case closed .And the lawyer for the Stó:lÅ complained that the feds spent too little time on the consultations (January to May) after wasting too much time preparing (August to December) and failed to “adequately address” the bands 89 recommendations..Unlike the previous federal court panels—such as those that killed the Northern Gateway and quashed the TMX in 2017—this triumvirate of judges appears devoid of any who might be described as activist. All three have backgrounds in corporate litigation or tax law and none of them hail from Burnaby—site of the controversial TMX terminal and home of Justice Eleanor Dawson, who wrote the 2017 TMX decision quashing the project, and co-wrote the Northern Gateway killer in September 2016..Thus, for Alberta and Saskatchewan – both of whom are represented as interveners in this hearing — there is some hope that these judges might put an end to the seemingly interminable opposition of an increasingly smaller group of Indigenous activists.
The seemingly endless legal exertions of several British Columbian Indian bands to block the Trans Mountain pipeline expansion (TMX) resumed before a panel of three Federal Court of Appeal judges in Vancouver this week. .In what has become the norm for Indigenous and environmental groups opposed to oil pipelines from Alberta to the west coast—pace the Northern Gateway fiasco—a dozen groups appealed the federal government’s June 18 “re-approval” of the TMX, which it bought from Kinder Morgan in July of 2017, on the familiar grounds of “insufficient consultation.”.But in a September decision that suggested the court may be growing a little impatient with these plaints, Appeal Court Justice David Stratas rejected six of the 12 appellants, including the City of Vancouver. He gave the remaining half dozen groups—all First Nations— seven days to file their paper work. Construction of the TMX, which began in August, was allowed to continue..Stratas limited the scope of the challenge to matters relating only to the feds’ consultation process, and not to various other issues that two of the bands – the Tseil Waututh and the Squamish nations—wanted heard, but which Stratas ruled had already been dealt with by the court. These included the bands’ claims that the National Energy Board’s environmental assessment process had been flawed. .Those two bands, both of whom are subsidized with money originating from the anti-oilsands Tides Foundation, remain among the appeal court appellants. But at the same time they have filed an application to have Stratas’ limitation appealed in the Supreme Court of Canada, which will decide in mid-January whether to hear the case..Since September two other of the six First Nations—the Upper Nicola Band, south of Kamloops, and the Kamloops Indian Band (aka Stk’emlupsemc te Secwepem) have dropped out of the Court of Appeal case, having reached accommodations with Trans Mountain, leaving four to challenge the Governor in Council’s (i.e. the federal cabinet’s) re-approval of the TMX. .Represented by a platoon of gowned, taxpayer supported lawyers at this week’s three-day hearing, the four groups are:.• The Tsleil Waututh Nation (pronounced “slay-wah-tooth” and abbreviated as TWN), the Metro Vancouver band enriched by its real estate developments on urban reserve land across Burrard Inlet from the Trans Mountain terminal. It claims an insufficiency of consultation on the likelihood of a tanker spill and the effects of a spill and increased traffic on killer whales with whom the band claims a “sacred relationship.”.• The Squamish Nation, another real-estate enriched coastal band whose claimed cetacean-centric concerns are similar to those of the Tsleil Waututh. .• The Coldwater Indian Band from near Merritt, which claims the second-round consultations, ordered by the court of appeal in its quashing of the TMX project in August 2017, failed to consider its argument for a re-routing of the pipeline to avoid crossing creeks feeding the aquifer that supplies the 300-member community with drinking water. .• The “Stó:lÅ Collective,” a coalition of 11 small tribes stretching about 200 kilometres along the lower Fraser River watershed from Burrard Inlet to the Coquihalla Highway. Stó:lÅ claims the government failed to properly consult it on the 89 recommendations in its “Integrated Cultural Assessment for the Proposed Trans Mountain Expansion Project” that sought to mitigate the project’s impact on its fishing rights and “cultural integrity.”.On Monday, the judicial panel, consisting of three, male, septuagenarians headed by Chief Justice Marc Noel (a Harper government appointee), listened to lawyers from three of the groups (Squamish was yet to come). The general thrust of their submissions was similar: the federal government had, as in the first go-round, failed to “meaningfully” engage the bands, had rushed through the process, behaved as if the pipeline approval was a foregone conclusion, and the “Phase 3” consultations were treated as a chore to be got out of the way ASAP. (The phase three consultations followed on the on the consultations that preceded the initial cabinet approval in 2016 then those that preceded last June’s re-approval.).The TWN lawyers claimed that the federal representatives had ignored evidence from the band’s experts that put the likelihood of tanker spill as high as 75%, maintained that diluted bitumen could sink and be irretrievable in one-to-two days, and that the noise from increased tanker traffic out of Burrard inlet and into the Strait of Georgia could threaten the survival of the orcas that are already “on the brink of extinction.” (Never mind the 100 or more ships that ply those lanes daily already.).Coldwater’s lawyers argued that the government’s representatives had given the band too little time to discuss the findings from their hired hydro-geological engineer that recommended alternative routes for the pipe that avoided crossing the creeks. (Never mind the fact that the existing Trans Mountain line has crossed creeks in their territory for 65 years without incident.). Trudeau on WE scandal: Case closed .And the lawyer for the Stó:lÅ complained that the feds spent too little time on the consultations (January to May) after wasting too much time preparing (August to December) and failed to “adequately address” the bands 89 recommendations..Unlike the previous federal court panels—such as those that killed the Northern Gateway and quashed the TMX in 2017—this triumvirate of judges appears devoid of any who might be described as activist. All three have backgrounds in corporate litigation or tax law and none of them hail from Burnaby—site of the controversial TMX terminal and home of Justice Eleanor Dawson, who wrote the 2017 TMX decision quashing the project, and co-wrote the Northern Gateway killer in September 2016..Thus, for Alberta and Saskatchewan – both of whom are represented as interveners in this hearing — there is some hope that these judges might put an end to the seemingly interminable opposition of an increasingly smaller group of Indigenous activists.
