On July 2, 2020, the Supreme Court of Canada (SCC) dismissed an application for leave to appeal from a group of First Nations in British Columbia who sought to challenge the federal Cabinet's second approval of the Trans Mountain Pipeline Expansion Project.
By dismissing the appeal, the SCC effectively upheld the Federal Court of Appeal's (FCA) decision in Coldwater First Nation v. Canada (Attorney General) (Coldwater), released on February 4, 2020. In Coldwater, the FCA dismissed judicial review applications from a group of First Nations, which challenged the adequacy of the federal government's Indigenous consultation process. We detailed this ruling in a previous article.
After numerous court challenges, the SCC's dismissal of the current leave application may be the end of the road for legal challenges to the approval of the Trans Mountain Pipeline Expansion Project. However, one news report indicates that First Nations' leadership will be turning their attention to other potential legal options.
In August 2018, the FCA overturned Cabinet's initial approval of the pipeline in Tsleil-Waututh Nation et al. v. Attorney General of Canada et al. (Tsleil-Waututh Nation). We detailed the case in a previous article.
After Tsleil-Waututh Nation, the federal government re-consulted with potentially-affected Indigenous peoples and also requested that the National Energy Board (NEB) perform a more exhaustive analysis on project-related marine shipping matters.
On June 18, 2019, Cabinet approved the Trans Mountain Expansion Project. The Canadian Energy Regulator (successor to the NEB) issued project approvals shortly after.
Twelve different parties filed applications for judicial review of the June 2019 Cabinet approval to the FCA in a second attempt to quash the project. On September 4, 2019, Stratas J.A., in the FCA decision Raincoast Conservation Foundation v. Canada (Attorney General) (Raincoast), granted leave for six of those applications to proceed to judicial review. We detailed this decision in a previous article.
Five parties who were denied permission to proceed to judicial review appealed the FCA ruling. On March 5, 2020, the Supreme Court of Canada declined to grant leave to appeal to those parties.
In Coldwater, the FCA reviewed claims from the six parties granted leave to proceed to judicial review. The FCA stipulated that the judicial review would be limited to the Crown's duty to consult with Indigenous peoples and whether this round of consultation was adequate. According to the Court's summary statement, the FCA judged Cabinet's decision to approve the pipeline using a "reasonableness" standard of review. The Court found that Cabinet's determination was "reasonable" based on "the evidence in the record, the law concerning the duty to consult, the legislation governing project approvals and the justification offered by Cabinet for its conclusion."
Now that the SCC has essentially upheld the Coldwater decision, it does not appear that opponents of the Trans Mountain Expansion Project have any further legal recourse to overturn the federal Cabinet's decision. However, objections to aspects of the project may be raised in the course of the Canadian Energy Regulator's review of the detailed project route.
Originally published 04 July, 2020
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