In August, 2018, after the Federal Court of Appeal quashed Ottawa’s approval of the Trans Mountain oil pipeline expansion, there was a national hue and cry over what seemed like constant setbacks for industrial projects. Some people were saying it had become impossible to get anything built in this country.
That view turns out to have been exaggerated. The 2018 ruling was not a sweeping condemnation of Trans Mountain. Instead, the court largely signed off on the federal government’s approval of the project, except for two specific failings: a failure to weigh the negative impact of oil tankers on marine life, and inadequate Indigenous consultations.
The court’s 2018 decision was, essentially, a paint-by-numbers guide to finishing those two steps, doing so in a reasonable time, and getting the project going.
So, the federal government got back to work. The additional environmental review was conducted and Indigenous consultation efforts were redoubled. Ottawa reapproved the pipeline last June.
There is indeed a high legal bar to getting a major project approved in Canada – but it can be cleared.
That was on display in Tuesday’s Federal Court of Appeal ruling, upholding Ottawa’s second approval of Trans Mountain. The additional round of Indigenous consultations was challenged by several First Nations; the court heard the case last December. On Tuesday, its decision was unanimous. The court said Ottawa’s new round of consultation was sufficient, remedying mistakes detailed in the 2018 verdict.
The court noted that of 129 Indigenous groups potentially impacted by the pipeline, at least 120 either back the project or do not oppose it. The court’s ruling is a reminder of the state of the law on the duty to consult and accommodate. It is a deep constitutional obligation, but it has clear limits. The court repeatedly underlined them.
The four First Nations who took this case to the Federal Court of Appeal are opposed to the pipeline, but that in itself is not a legal barrier to Ottawa giving its approval. “Canada,” wrote the court, “was under no obligation to obtain consent prior to approving the project.”
To demand that every Indigenous group give its agreement would “amount to giving Indigenous groups a veto.” That’s not how Canadian law works.
“Where there is genuine disagreement about whether a project is in the public interest, the law does not require that the interests of Indigenous peoples prevail.”
The ruling is a win for Trans Mountain, whose construction is almost certain, and for Canada. The 2018 Federal Court ruling provided Ottawa with a legal road map. Tuesday’s judgment fills out the map. The process of project approval isn’t quick, but there is a finish line and a way to get there in a reasonable amount of time.
Canada paid $4.4-billion for Trans Mountain in spring 2018, after Kinder Morgan gave up on it. It will take a lot more to get it built. The Parliamentary Budget Officer has estimated it could cost $9.3-billion. Oil could flow by 2023.
Ottawa has to make sure that, at the end of the day, Canadians are not left with the bill. When the private sector balked, after regulatory and political speed bumps, Canadian taxpayers assumed the risk. Getting approval for the pipeline has been a challenge. Finding a buyer will be another.
There also could be an appeal to the Supreme Court of Canada, but we see no reason it would overturn Tuesday’s decision. The Federal Court relied heavily on established jurisprudence and previous Supreme Court decisions.
One big future legal question does loom: the impact of the United Nations Declaration on the Rights of Indigenous Peoples. British Columbia last year codified the declaration into provincial law. The federal government plans to do the same. That could rewrite the laws that the Federal Court of Appeal relied on in Tuesday’s decision.
UNDRIP includes wording calling for the “consent” of Indigenous Peoples prior to resource development. The meaning is unclear, but it may introduce a new and expansive right into Canadian law. On its face, it looks like a veto, which would go well beyond the Crown’s current duty to consult and accommodate. How UNDRIP is interpreted by the courts remains to be seen.
For Trans Mountain, however, the question is settled. The process of approval was long – too long. But the result is that future projects have a clear road map.