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Supreme Court to decide whether to allow First Nations’ challenge against Trans Mountain pipeline

The Supreme Court of Canada is expected to announce Thursday whether it will allow an appeal from a group of First Nations in B.C. looking to challenge the federal government’s second approval of the Trans Mountain pipeline expansion project.Workers are pictured at the Trans Mountain pipeline expansion project in Burnaby, B.C., on June 17, 2019. The Supreme Court of…

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Published on July 2, 2020

The Supreme Court of Canada is expected to announce Thursday whether it will allow an appeal from a group of First Nations in B.C. looking to challenge the federal government's second approval of the Trans Mountain pipeline expansion project.

Workers are pictured at the Trans Mountain pipeline expansion project in Burnaby, B.C., on June 17, 2019. The Supreme Court of Canada is issuing its decision Thursday on whether it will allow a group of First Nations in B.C. leave to appeal a decision that upheld the re-approval of the project. (Ben Nelms/CBC)

The Squamish Nation, Tsleil-Waututh Nation, Ts'elxweyeqw Tribes and Coldwater Indian Band are seeking leave to appeal a February decision by the Federal Court of Appeal that found cabinet's approval of the pipeline project in June 2019 was reasonable under the law.

The top court is set to issue its decision at 9:45 a.m. ET on Thursday. The court will not give reasons for its choice, as is custom.

Tsleil-Waututh Chief Leah George-Wilson and Syeta'xtn (Chris Lewis) of the Squamish Nation will be hosting a virtual news conference after the top court issues its decision.

In a video news conference in April, Tsleil-Waututh and Squamish leaders said they were challenging the adequacy of Indigenous consultation leading up to the second approval of the project.

George-Wilson said the Appeal Court's decision earlier this year represented a setback for reconciliation.

“If unchallenged, it could change the way consultation and consultation cases happen in Canada, making it less meaningful for protecting our inherent constitutionally protected Aboriginal rights,” George-Wilson said.

The decision relied on a finding that cabinet's determination of its own consultation process was adequate, and the First Nations argue the decision should have been made at arm's length, she said.

Chief Leah George-Wilson of the Tsleil-Waututh Nation at a press conference challenging the re-approval of the Trans Mountain pipeline expansion in Vancouver on Dec. 16, 2019. (Ben Nelms/CBC)

“Cabinet is not an expert in consultation and as owners of the project, they were unable to objectively assess the adequacy of their own consultation,” George-Wilson said.

The Federal Court of Appeal overturned cabinet's first approval of the pipeline expansion in 2018, citing insufficient consultation with Indigenous people and a failure to take into account the affect on marine animals.

After another round of consultations and a second look at how marine life would be affected, cabinet gave the project a green light.

In March, the Supreme Court of Canada decided not to hear five challenges from environment and Indigenous groups from British Columbia, which included the Tsleil-Waututh and the Squamish First Nations.

Some of those groups challenged a Federal Court of Appeal decision in February not to hear their request to consider whether there had been sufficient consultation.