The Canadian Federal Court of Appeal has approved six permission requests to legally challenge the Trans Mountain Expansion Project.
* Article updated 7 September 2019. Please see update notice for more information.
Trans Mountain is an existing 1,150 km pipeline that runs between Strathona County, Alberta and Burnaby, British Columbia that has faced delays over the last year due to regulatory issues, and environmental and landowner challenges.
Six of these challenges have now been approved by the court, allowing the applicants to formally pursue legal action.
The challenges approved relate to the questionable adequacy of the Government of Canada’s consultation with Indigenous peoples and First Nations between the court’s decision in August that the Canada failed to address concerns raised by First Nations and the Governor in Council’s approval in June 2019.
Following the August decision, the court required that First Nations be provided with information on an Indigenous group’s strength of claim to provide a fair playing field for all parties and to understand when accommodations might be needed.
In the latest grant for approvals, the court has ordered that the challenges proceed on an expedited basis, setting short and strict deadlines for the litigation steps.
In the Federal Court of Appeal Decisions Raincoast Conservation Foundation v. Canada (Attorney General), the issues identified include the “substantive unreasonableness of the Governor in Council’s decision to approve the project” and a “failure to adequately consult with Indigenous peoples and First Nations”.
With a requirement for consultation to meet a threshold for a “fairly arguable case” that exceed the leeway given to the decision maker, arguments for the challenges must consider the “process, quality and conduct of consultation”.
The six applicants will be given leave to start applications for judicial review.
Update notice: Due to an editing error, an earlier version of this article incorrectly indicated that Trans Mountain received six approvals on this project. This is incorrect, six Indigenous and First Nations groups opposed to the pipeline received approval to pursue legal action.
For more information visit the Federal Court of Appeal website.
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