Trudeau considering an appeal or legislation to end Trans Mountain impasse

Trudeau considering an appeal or legislation to end Trans Mountain impasse

gFederal Court of Appeal ruling halted $7.4 billion project last Thursday

John Paul Tasker

CBC News

Sep 05, 2018

A week after the Federal Court of Appeal quashed cabinet approval of the Trans Mountain pipeline expansion project, Prime Minister Justin Trudeau said Wednesday his government is looking at all options to get construction back on track — including an appeal of the ruling and new legislation.

Speaking to reporters in Edmonton, Trudeau said he wants to see “shovels in the ground as quickly as possible” because the project is in the country’s best interests, adding he also wants to satisfy the court’s concerns to avoid further litigation.

“We’re looking at various options, including legislation, including appeals, and we’re looking at what we need to do to satisfy the court,” Trudeau said. “We have to move forward on a path that takes community and environmental assessments into account.”

Citing Canada’s uncertain trade climate and U.S. President Donald Trump’s protectionist push, Trudeau said his government is “taking it seriously and we’re moving forward because this pipeline project needs to get done and the only way it will get done is by doing it the right way …

“Canadians understand how important it is to get our resources to markets other than the U.S. right now, across the Pacific.”

Concluding that the federal government’s consultations with Indigenous peoples on the project were inadequate, Justice Eleanor Dawson nullified licensing for the $7.4-billion expansion last Thursday, halting construction only days after shovels hit the ground on the 1,150-km project.

The court said the National Energy Board should reconsider its environmental assessment process. At issue for the court was the board’s silence on the impact the pipeline could have on the marine environment around the shipping terminal in ​Burnaby, B.C., situated at the end of the expanded line.

The court said the NEB did not adequately address the potential impact of a substantial increase in tanker traffic on the endangered southern resident killer whale population in those waters, or the risk of a diluted bitumen spill there.

The appellate court also found that the federal government did not adequately, or meaningfully, consult with Indigenous people and hear their concerns after the NEB issued its report recommending that cabinet approve the project.

Read on:

The federal government completely botched this file.

The government avoided its responsibilities and left it to Trans Mountain to negotiate with aboriginal tribes but failed to make those negotiations known to the court. The contention that consultations did not take place is wrong. Plaintiff tribes were not about to correct the error.

The protection of oceans is another red herring. The government passed legislation to protect the coastal environment and again the government failed to make that clear.

The premier (Notley) also laid some of the blame for the project’s shutdown at the feet of the previous federal Conservative government.

“You all know my view on the federal Court of Appeal decision. It identified some problems, including problems, that quite frankly, we inherited from a system that was set up by former prime minister [Stephen] Harper. We’re focused now on finding a solution.”

Ungracious cheap shots from Notley. Harper had nothing to do with BC court challenges, Trudeau’s amendments to the environmental assessment process or his empty promises to aboriginals. The federal government has no contingency plan. It should have been considering options immediately after the action was filed in the Court of Appeal. After the fact flailing and floundering are an insight into how badly prepared this government is to protect Canadians and their best interests.

In that ruling, the court sought to end ambiguity and laid out exactly what it expects the federal government — or the National Energy Board, on its behalf — to do to satisfy the duty to consult:

  • Consult with First Nations, Métis and Inuit communities in the future.
  • Hold oral hearings and provide written responses. 
  • Fund Indigenous efforts to intervene. 
  • Use its considerable quasi-judicial powers to compel companies to hand over pertinent information.
  • Help Indigenous Peoples solicit real answers from often secretive proponents.

Ahem! It is long past time to require accountability, openness and transparency by ‘First Nations, Metis, and Inuit’ communities, including where they get funding for their protests. Fair dealing goes both ways, and aboriginal refusal to be accountable for public funding is unacceptable.  

Government efforts to fast-track marijuana legalization and carbon taxes while ignoring Trans Mountain until it spiraled out of control shows us how out of touch this government is.

The federal government has jurisdiction over interprovincial works and the responsibilities that go with that jurisdiction. The government could easily have applied to the courts to squash various BC court actions as Trans Mountain is under federal jurisdiction. At the very least, it should have participated in negotiations with aboriginals.

John Feldsted

Political Consultant & Strategist

Winnipeg, Manitoba


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