Federal Appeal Court Decision: A Partial Victory for the Environment and Indigenous Rights and a Partial Defeat for the Trudeau Liberal Government
In a decision that sent shock waves across Canada, the Federal Court of Appeals just quashed the approval of the Trans Mountain pipeline after a court challenge led by Indigenous Nations. The court decision said the government failed in its constitutional duty to "engage in a considered, meaningful two-way dialogue" with Indigenous Nations affected by the project, and that the National Energy Board's failure to consider the project's impact on the marine environment, including the impact of increased tanker traffic on the endangered population of southern resident killer whales.
Stating the Obvious
That the government hadn't consulted in good faith was no news to those who had supposedly been consulted with. Chief Maureen Thomas of the Tsleil-Waututh Nation said in a statement, “We went into consultations with the federal government with open hearts and minds, but sadly the process could best be described as window dressing. We had a strong sense that the decision had already made before we even sat down.”
Even internal government memos described a negotiation as “paternalistic,” “unrealistic,” and “inadequate.”
That the National Energy Board (NEB), the government agency which regulates international and inter-provincial aspects of oil and gas industries, refused to consider the impact of the pipeline on marine environment shows how flawed its review process was from the beginning. The whole point of the pipeline project is to get Tar Sands bitumen from Alberta to the oceans of the West Coast to be shipped in tankers. It would increase tanker traffic from 60 to 400 per year.
All the information about the many dangers of increased tanker traffic transporting a substance (bitumen) for which there is no proven marine cleanup process in a very sensitive marine environment were provided to the government in the many comprehensive reports created by the Tsleil-Waututh Nation.
So the shock wasn't that the approval process was seriously flawed, but that a court had finally acknowledged it.
The court decision is another victory for the ongoing Indigenous-led movement opposing the pipeline expansion. Over the last decade at every major moment, the movement has been able to pull together enough to make its voice a major factor. Mobilizations of tens of thousands of people, bank divestment campaigns, protest camps, pickets at Trudeau fundraisers, construction blockades and literally thousands of community actions across Canada have made it politically challenging to move forward with the project. So much so that Texas oil giant Kinder Morgan gave up on the project and demanded a government buyout, and a Federal Court released a decision knowing that all eyes were on them.
So That's It?
It's important to reemphasize the Federal Court decision did not cancel the pipeline expansion project; it just told the government the two areas it needed to improve for the approval process to move forward. This delays the project but does not cancel it. The Federal Court decision even concludes in Point 772 that it envisions a “brief and efficient” delay to accomplish “meaningful consultation” with Indigenous Nations.
Prime Minister Trudeau also doubled down on building the project, tweeting “Today I spoke with [Alberta] Premier Rachel Notley - and reassured her that the federal government stands by the TMX expansion project and will ensure it moves forward in the right way.”
Federal Finance Minister Bill Morneau was equally determined. He told reporters the day of the court decision, "Our next step is to close on the acquisition of the project. We expect that will happen as early as tomorrow."
By “acquisition” he is referring to the government bailout of the pipeline project Kinder Morgan demanded and got when progress on the project was slowed due to the persistent opposition. Unsurprisingly, Kinder Morgan Canada shareholders voted within an hour of the court decision to move forward with the 4.5 billion sales of the existing Trans Mountain pipeline and the stalled expansion project to the government of Canada. They made a 637% profit from their initial purchase!
Morneau also continued, “This is a project that’s in Canada’s national interest...This one will be a strong, commercial project once we de-risk it. That’s what we’re attempting to do so that we can be in the market in the long term.”
So no, the Trans Mountain Pipeline Expansion Project is definitely not dead and will be continued stronger. There is too much at stake for the government to let it go now, and they've shown time and time again that the evidence doesn't matter. They have already had countless opportunities to cancel the project on solid grounds with even less political consequences than there would be now.
The Federal government can either appeal the Federal Court decision, or attempt any number of manoeuvres to create the illusion of indigenous support. They've already discussed trying to create some sort of Indigenous-led investment group to take over the project. Also remember that the ruling talks about “meaningful consultation” not the “free, prior and informed consent” outlined in the United Nations Declaration on the Rights of Indigenous Peoples and demanded by the many Indigenous Nations opposing the project.
Among the many flaws in the NEB decision making process which the court ruling does not address is its refusal to take into the account the massive climate impact of building and using another dirty Tar Sands pipeline. How could this be a complete or credible decision without that?
You Can't Win a Hockey Game By Only Playing Two Periods
“This battle will continue until we can finally stand back and say B.C. is off limits for toxic resource projects that do not respect the land of British Columbia and the human rights of the Indigenous and non-Indigenous peoples of British Columbia,” Grand Chief Stewart Phillip of the Union of BC Indian Chiefs
Nothing can change the scientific, economic, Indigenous and community consensus against this dirty Tar Sands pipeline. We've come too far now to let down our guard and let the government re-mount some sort of comeback justifying this project's construction. This future is this project is truly decisive. We demand a future based on consent from Indigenous Nations. Based on prioritizing people and the planet before pipelines and corporate profits. Trudeau is trying to enable the opposite.
We have shown how powerful we can be when we work together. We need to continue educating, organizing and mobilizing against the Trans Mountain Pipeline Expansion until the project is totally, completely, 100% dismantled. Now is the best time to make sure the Trudeau government gives up this climate disaster once and for all!
No Trans Mountain Pipeline Expansion!
Not Now, Not Ever!
Build Our Future, Not a Pipeline!
Follow Thomas on Twitter: @thomasdavies59
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