The Supreme Court of Canada will announce Thursday morning whether or not it will accept the appeal of aboriginal communities opposed to the expansion of the Trans Mountain pipeline, which could end the court challenge to the approval of the project by the federal government.
The Squamish and Tseil-Waututh Nations and the Aboriginal community of Coldwater, British Columbia, contest a unanimous decision of the Federal Court of Appeal who validated the second green light donated to the project by Ottawa in June 2019.
“Jurisprudence is clear that Indigenous Peoples can assert their adamant opposition to a project, but they cannot tactically use the consultation process to try to veto it“Wrote three judges on behalf of the court in the February judgment which called the federal government’s second approval of the Trans Mountain expansion”reasonableAnd says that Ottawa has demonstrated that it understands what the duty to consult requires.
The same court had repealed, in August 2018, a first decree authorizing the expansion of the pipeline, particularly in the absence of adequate consultation with the Native people.
Ottawa had to redo its homework, put together new teams and resume the process, under the supervision of a former Supreme Court judge, Frank Iacobucci.
The three First Nations, however, argue that this second approach was also not conducted in accordance with the constitutional requirements for consultation and accommodation of Aboriginal peoples.
They therefore ask the Supreme Court of Canada to overturn the Federal Court of Appeal’s decision and quash the green light given by the government of Justin Trudeau about a year ago.
A fourth plaintiff, dismissed by the Federal Court of Appeal, the Ts’elxwéyeqw Tribal Group in the Fraser Valley, has abandoned an appeal to the highest court in the country.
If the judges decide to hear the Squamish and Tsleil-Waututh Nations and the Coldwater Band, it could prolong the uncertainty surrounding the completion of the Trans Mountain expansion by several months, if not years.
A refusal would put an end to the legal challenge to the second approval of the project by Ottawa.
Refusal to hear a call in March
On March 5, the Supreme Court of Canada denied permission to call presented by Aboriginal people and environmental groups who challenged federal approval of the pipeline expansion for other reasons.
The expansion of Trans Mountain, which links Alberta to the Pacific coast, will increase its capacity from 300,000 to 890,000 barrels of oil per day.
Certain details of the project have yet to be resolved, including the exact location of certain portions of the pipeline, which require additional environmental assessments and may again involve the obligation to consult First Nations.
The vast majority of Aboriginal communities along its route have given their support to Trans Mountain.
Ottawa acquired it at the end of August 2018, at a price of $ 4.5 billion.