Indigenous cases against TMX, explained


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On Monday, December 16th, the Federal Court of Appeal will be conducting a judicial review of the Trans Mountain pipeline and tankers project approval. Tsleil-Waututh, Squamish and Coldwater First Nations are challenging the constitutionality of the 2019 approval of the project and will be arguing that the government failed to adequately consult them about a project that will significantly impact their lands, air and water.  

Judicial reviews of the previous approval of TMX — supported by Pull Together to the tune of $650k—  quashed project approvals, halted construction and forced a lengthy re-do of Indigenous consultation by the Federal Government. 

The First Nations litigants’ traditional territories cover virtually all of the pipeline’s route in B.C. If successful, these legal challenges could once again stop the project in its tracks by quashing or nullifying the approval announced on June 18th by Prime Minister Justin Trudeau. 

What is the legal basis of First Nations’ court challenges?

The cases argue multiple significant legal deficiencies of the federal cabinet approval. The main argument to be presented in the Dec 16-18 hearing is about inadequate consultation with First Nations, which was one of the primary reasons that the previous approval was overturned when the Federal Court of Appeal stated: “Canada’s efforts fell well short of the mark set by the Supreme Court of Canada.” 

The court documents argue that government consultation teams failed to engage in meaningful dialogue about a number of specific and focused concerns which remained unresolved when the federal Cabinet approved TMX. These include oil spill likelihood, behaviour and impact and, in particular, questions about whether diluted bitumen can be effectively cleaned up.

Canada’s ownership of the pipeline gives these new cases additional layers of complexity. The nationalization of the TMX in 2018 also gave rise to new legal arguments around bias and conflict of interest. Unfortunately, these new arguments fall outside the narrow scope imposed by Justice Stratas for this hearing . In his September 4, 2019 decision Justice Stratas also barred arguments relating to TMX’s impacts on climate; instances of noncompliance with the federal Species at Risk Act; and the economics of the project and the need for it.

Squamish and Tsleil-Waututh Nations have sought leave to appeal to the Supreme Court of Canada in order to challenge Justice Stratas’ decision which significantly narrows the scope of the Judicial Review and eliminates a number of important concerns. Stay tuned for that challenge which the Nations’ legal teams hope will be heard in spring 2020. 

Inadequate consultation with First Nations

It is important to note that each First Nation’s legal challenge is based on unique facts relating to their specific territory, rights, and title. This raises an independent duty for Canada to consult and accommodate each individual First Nation. In other words, the extent and content of consultation are specific to the facts and circumstances for each First Nation, and satisfying the duty to consult and accommodate one First Nation does not guarantee that the duty has been fulfilled for another. Success on any one of the First Nations’ legal challenges could delay the project.

The Supreme Court of Canada has held that “The Crown’s duty to consult imposes on it a positive obligation to reasonably ensure that aboriginal peoples are provided with all necessary information in a timely way so that they have an opportunity to express their interests and concerns, and to ensure that their representations are seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action.” 

The First Nations’ legal arguments highlight the following areas where this duty was not met during the latest round of consultation:

1.     The federal government failed to meaningfully engage with and address specific and focused concerns repeatedly raised by First Nations, resulting in a breach of Canada’s constitutional duty to consult and accommodate.

2.     Consultations were once again rushed on a unilaterally-imposed timeline.

3.     The federal government did not engage in consultations with an open mind: as the proponents of the project, the decision to approve did not appear to be in question.

4.     Accommodation measures were generic and proposed before First Nations had the opportunity to fully list their concerns. Those measures did not change following the consultation period.

5.     The federal government initially denied the existence of its own peer review documents of Tsleil-Waututh and Squamish expert reports which largely agreed with the First Nations’ conclusions. Later, the government withheld the documents from the First Nations and finally, provided altered versions. Only after the approval on June 18 were the Nations provided with the original peer review documents, which confirmed that the government staff agreed with the Nations’ expert reports about the lack of information regarding the fate and behaviour of a diluted bitumen spill in the Salish Sea.

6.     In Coldwater’s case, the consultation process resulted in a weakening of the previously approved conditions by imposing a new timeline to complete a hydrological study of Coldwater’s aquifer and failed to address the flaw found by the Court that Canada failed to consider additional measures to address Coldwater’s concerns about risks to their drinking water.

7.     The Ts’elxwéyeqw Tribes have already confirmed fishing rights at Supreme Court of Canada (SCC) in waters directly affected by the project, but the Tribes were consulted as if those rights were not confirmed, and there was no justification of the infringement of these confirmed rights. There was also no implementation of any of the Tribes’ 89 recommendations.

The Federal Court of Appeal (at 701 W. Georgia St., Vancouver) is scheduled to hear the consolidated Trans Mountain case from December 16-18, 2019. The approximate schedule of the hearing will be:

December 16: Tsleil-Waututh Nation, Coldwater, Ts’elxwéyeqw Tribes

December 17: Squamish, Canada (AG)

December 18: Trans Mountain Corporation, Saskatchewan (AG), Alberta (AG) & Reply arguments.

Pull Together has raised $310K — and counting — to support Indigenous sovereignty and access to the courts.  Synchronized with an active force opposing tar sands expansion, the joint campaign is being run by RAVEN (Respecting Aboriginal Values and Environmental Needs) and Sierra Club BC. According to Susan Smitten of RAVEN, “Lawsuits are a severe capacity strain for First Nations, who stand as a last and inviolable line of defense against environmental destruction — if and only if the Nations can afford to uphold those rights in court.”  

By providing funding for  First Nations to access the justice system, citizens, organizations and businesses are all pulling together to level the playing field so that small Indigenous  communities have the resources they need to stand up for their rights. 

Now, it’s up to the legal teams to put in the performance of a lifetime, starting Monday. As Indigenous leaders travel from communities along the pipeline route to attend hearings, hundreds of supporters will gather in downtown Vancouver to show their support.  Hear from leaders of the Indigneous Nations fighting TMX in court: Join the rally :

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