Supreme Court Won't Hear B.C. First Nations' Appeal Over TMX Pipeline

OTTAWA — The Supreme Court of Canada will not hear a new appeal from British Columbia First Nations over the Trans Mountain pipeline expansion.

On Thursday, the court dismissed the appeal from the Squamish Nation, Tsleil-Waututh Nation, the Ts’elxweyeqw Tribes and Coldwater Indian Band, effectively ending the years-long legal battle over the project.

As is customary, the court did not give reasons for its decision.

First Nations leaders were planning a news conference later Thursday to respond to the court’s decision.

The Trans Mountain project was first approved in 2016, but stopped by the Federal Court of Appeal two years later after First Nations and environmental groups successfully argued the approval process was flawed.

Ottawa approved the project a second time in June 2019 after undergoing additional consultation with the affected communities, but the bands still felt the government did not fulfil its duty to consult and again appealed the decision.

The Federal Court of Appeal ruled in February the approval would stand, saying the government had made a genuine effort to hear and accommodate concerns raised. But the First Nations disagreed and asked the Supreme Court to hear the case.

The bands still have outstanding concerns about the impact the pipeline could have on drinking water as well as ongoing concerns about the effect on marine life — particularly the highly endangered Southern Resident killer whales — off the B.C. coast.

Thursday’s decision would appear to be the end of the road for legal arguments aimed at stopping construction on the pipeline.

In January, the Supreme Court said the B.C. government had no authority to try and regulate what could flow through the pipeline, which as an interprovincial project sits in federal jurisdiction.

The court also declined in March to hear a challenge from environmental groups who had been denied the right to appeal the second approval.

The expanded pipeline will nearly triple the amount of diluted bitumen flowing between Alberta’s oilsands and a marine port in Burnaby, B.C.

Initially proposed by Kinder Morgan Canada to twin the existing pipeline that carries both refined products and diluted bitumen, the pipeline became a political symbol for the fight over whether Canada can continue to extract and sell fossil fuels and combat climate change.

Bought for $4.4 billion

In 2019, the company’s shareholders got cold feet about proceeding with the multibillion-dollar expansion, worried that legal challenges from Indigenous communities, environment groups and the B.C. government would delay construction too long.

The federal Liberal government was unable to convince the company it could overcome the legal hurdles, and in May 2018, bought the existing pipeline for $4.4 billion with a promise to get the expansion done and then sell everything back to the private sector.

That decision was dealt a significant blow just months later when the Federal Court of Appeal overturned the approval, halting construction. Building began anew last summer after the second approval, and continued despite the new legal challenges.

Prime Minister Justin Trudeau has consistently tried to sell the project as his government’s compromise between the economy and environment, arguing Canada can only pay for the transition to a cleaner, greener future if it takes the most advantage of its natural resources, which remain in demand around the world.

Most oil produced in Alberta is sold at a discount because Canada is so heavily reliant on the United States as its customer. The hope is that this pipeline will carry more Canadian oil to the Pacific, where it can make its way to Asia, raising the price companies can get for the oil.

This report by The Canadian Press was first published July 2, 2020.

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