TMX: Supreme Court of Canada Denies Leave, as Tsleil Waututh announces another appeal

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The following is a media statement from Tsleil Waututh, issued March 5, 2020:

The Supreme Court of Canada has denied leave to appeal a decision by the Federal Court of Appeal from September 4th, 2019 which significantly limited the grounds that the First Nations, including Tsleil-Waututh, could argue in the recent Coldwater case.  Tsleil-Waututh announced today that they would appeal the Coldwater decision, which upheld the approval of  the Trans Mountain Expansion Project (TMX) after finding consultation to be adequate.

“We took this issue to the Supreme Court of Canada not only to stand up for our inherent and constitutionally protected rights, but also to make sure that Canada follows their own laws when making decisions,” said Tsleil-Waututh Chief Leah Sisi-ya-ama George-Wilson. “We are disappointed in this result, but our opposition remains unchanged. We will be appealing the consultation case to the Supreme Court of Canada. This isn’t over by a long shot.”

In today’s leave decision, Tsleil-Waututh and others argued Federal Court of Appeal (FCA) made a legal error by raising the legal test applicable to leave decisions, thereby excluding grounds that were not about Indigenous consultation from the FCA’s Coldwater case. The case would have dealt with important implications on the relationship between the government and the courts in a constitutional democracy, and could have impacted decisions beyond First Nations upholding their Aboriginal rights.

The grounds the FCA excluded from the consultation case included:

–        Canada’s failure to consider marine shipping throughout Canada’s Exclusive Economic Zone in the environmental assessment and final decision on TMX;

–        Failing to comply with the Canadian Environmental Assessment Act, 2012 and Species at Risk Act in relation to the Southern Resident Killer Whales;

–        Relying on stale economic evidence and ignoring fresh evidence that the project is uneconomic; and

–        Failing to consider TWN’s Aboriginal title and rights by refusing to justify infringement of rights or obtaining consent.

“We believe that Canada should follow their own laws when reviewing projects such as TMX. Because of this decision, Canada’s failure to apply the Canadian Environmental Assessment Act, 2012 and theSpecies at Risk Act will put the endangered Southern Resident Killer Whales at greater risk of extinction. Canada’s reliance on stale-dated economic evidence will not be examined, in spite of the fact that the oil and gas industry in Canada is in a decline, and TMX is no longer needed nor economically feasible at the new $12.6 billion construction cost. This will leave Canadian taxpayers on the hook for what will likely become a stranded asset.” Said Chief George-Wilson

The leave to appeal the Coldwater case will be filed  in the next few weeks. It will raises important issues about the role of the courts in reviewing Indigenous consultation. In Coldwater, the FCA took a new approach to reviewing consultation cases, deferring to federal cabinet’s own assessment about whether consultation was adequate.

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