Trans Mountain: the supreme Court will not hear the call of aboriginal nations

Photo: Jason Franson, The canadian Press
The construction of the expansion of the pipeline, Trans Mountain has already begun. The federal government anticipates that the work will be completed towards the end of the year 2022.

New backhand of justice for the indigenous communities who are still hoping to block the expansion project of the oil pipeline of Trans Mountain. The supreme Court refuses to hear their appeal, which sought to undo the last approval of this project by Ottawa.

Justin Trudeau can therefore breathe a sigh of relief. The construction of the expansion of the pipeline can continue.

Three aboriginal nations of British Columbia had taken to the highest court of Canada this spring, after a first defeat in front of the federal Court of appeal.

The nations-the Squamish, Tsleil-waututh, and the Coldwater Indian Band, have accused Ottawa have not been adequately consulted prior to approving a second time the expansion of the oil pipeline of Trans Mountain. All three asked now to plead their cause to the supreme Court, but the latter dismissed their application for leave to appeal on Thursday — making so that the decision of the federal Court of appeal holding the approval of Ottawa’s reasonable prevails. As always, during this step of justice, the supreme Court has not detailed the reasons for its decision.

A long saga

The three nations had succeeded for the first time to assert this argument before the federal Court of appeal, two years ago. The court had then ruled, in August 2018, that consultation with the federal with indigenous communities affected by the project was insufficient. The federal Court of appeal had also concluded that Ottawa had not studied the impact of increased maritime traffic arising from the project on the threatened population of killer whales. Approval of the project, Trans Mountain had been invalidated by the court.

To meet this judgment, the government, Justin Trudeau has made consultations more specific to some aboriginal communities. The liberals have approved a new project of Trans Mountain, in June 2019.

But as soon as this decision was announced, the aboriginal nations have warned that they would challenge again. Because they deplored the fact that the second round of consultations, on six months, has this time been too fast and has been that facade because Ottawa had already decided to go ahead with the expansion of the pipeline.

The federal Court of appeal rejected this argument this winter. In a unanimous decision, the three judges ruled that Ottawa has complied with its duty to consult aboriginal communities. “Contrary to what the plaintiffs assert, it was not a simple approval blind “, wrote the judges, in their decision dated the 4th of February. “It is true that the plaintiffs believe that it has not responded fully to all of their concerns, but the fact of requiring it to be done would be to use the standard of perfection, which is not the legal standard. “

The judges have also ruled that the obligation to consult the indigenous communities is not an obligation to give them a reason to the outcome of these consultations. “The case law indicates clearly that even if the indigenous peoples can assert their categorical opposition to a project, they cannot use the consultation process as a tactic to attempt to veto this. “

The decision of the federal Court of appeal recalled, in particular, that Ottawa has sought the opinion of 129 indigenous groups, of which 120 indicated that they supported or were not opposed to the project.

The construction of the expansion of the pipeline, Trans Mountain has already begun. The federal government, which bought the pipeline in the oil Kinder Morgan in June 2018, is anticipated that the work will be completed towards the end of the year 2022.

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