This blog represents my own personal opinions, thoughts and ideas, and should never be relied on as legal advice. My goal is have a national discussion with the grass roots citizens to see where we can affect the changes we want for our families, communities, and Nations. We owe it to our ancestors to protect our cultures and territories for our future generations.
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Killer Whales, Trans Mountain Pipeline and the Public Interest
(photo by NOAA from Raincoast Conservation Foundation)
This article is Part 1 of a 2 part series which was originally published in The Lawyer's Daily on September 11, 2018. Part 2 will be published in a few days.
“tour of grief” which saw one of the female southern resident killer whales
(referred to by scientists as J-35) carry her deceased calf for 17 days was an
unprecedented show of grief for the death of her calf. It is also a sad
reminder of the fact that these endangered whales have had no successful births
for three years. Her visible mourning tore at the heartstrings of many Americans,
Canadians and especially Indigenous peoples who know all too well the pain of
losing their children. While it is not uncommon for a killer whale to hold her
deceased calf for a few hours or a day, this show of extended grief was the
first time observed by scientists.
wonder whether Tahlequah’s actions were not a call for help given that there
are only 75 whales left and the proposed increase in tanker traffic from the
Trans Mountain pipeline threatens to wipe them out for good. Indigenous Nations
in Canada and several conservation groups filed applications against Canada’s
decision to approve the pipeline in the hopes of saving these whales and all
life in the surrounding eco-system.
Aug. 30, 2018, Justice Eleanor Dawson delivered the decision of the Federal
Court of Appeal (FCA) quashing Canada’s approval of the Trans Mountain Pipeline
expansion (Tsleil-Waututh Nation v.
Canada (Attorney General) 2018 FCA 153). From the moment the decision was
released, there was more shock and awe to go around than had the court
pronounced that the earth was flat. While the controversy generated from that
decision has been quite dramatic, the decision is far less apocalyptic than
most might think.
this decision to quash the approval of the Trans Mountain expansion reflected
principles espoused by the Supreme Court of Canada (SCC) for the last two
decades. No new law was created — it was a case which reflected the current
legal status quo.
case — unlike the raging fires in British Columbia or the melting of the ice in
the Arctic — is rather non-calamitous; unless of course you consider the fate
of the southern resident killer whale or the health of the Indigenous lands and
waters upon which this pipeline will wreak havoc. That is because despite the
fact that the Federal Court of Appeal quashed the decision in this instance, it
also set up the conditions for which the federal government can approve the
pipeline in the future. So, while Prime Minister Trudeau moans about how “hurt”
he is by the decision, and while the extractive industry goes into full panic
mode, the only ones who need to be worried here are the Indigenous peoples and
their conservation allies who will now face the full wrath of the oil industry
and its federal and provincial cheerleaders.
how it all started: On Dec. 16, 2013 (under the Harper government) Trans
Mountain submitted an application to the National Energy Board (NEB) for a
certificate to allow the expansion project to proceed. After several years of
review, on May 19, 2016, the NEB recommended to the governor-in-council that
the pipeline expansion be approved. Six months later, on Nov. 29, 2016, the
governor-in-council (cabinet) (under the Trudeau government) accepted the NEB’s
recommendation and issued an order-in-council to that effect. The appeals of
this decision were heard at the FCA in October of 2017 and the court issued its
decision almost a year later in August 2018.
case involves individual applications by five First Nation collectives, two of
B.C.’s largest cities, and two conservation groups asking the Federal Court of
Appeal to overturn Canada’s decision to approve the pipeline expansion. The
respondents in the case were the Attorney General of Canada, the NEB and the
Trans Mountain Pipeline company. The FCA consolidated the applications into one
to be heard together.
the applicants made various arguments challenging different aspects of the
decision-making process, the FCA determined that the only “decision” that was
under review was the decision of the governor-in-council to approve the
expansion. That decision was challenged on two primary grounds (1) the NEB’s
process and resulting report were flawed and (2) Canada did not fulfil its duty
to consult with Indigenous peoples.
primary reason why the FCA found that the NEB’s process was flawed was because
it “unjustifiably defined the scope of the Project under review not to include
Project-related tanker traffic”. Specifically, the NEB excluded the impact of
increased marine traffic on the B.C. coast on the southern resident killer
whales, which are an endangered species, was not properly considered within its
assessment of the impacts of the project. This is despite the fact that they
had already acknowledged that the increase in large tanker traffic “would
contribute to the total cumulative effects on the Southern resident killer
whales, and would further impede the recovery of that species” and that
“Southern resident killer whales are an endangered species”.
further acknowledged that: “... the operation of Project-related marine vessels
is likely to result in significant adverse effects to the Southern resident
killer whale, and that it is likely to result in significant adverse effects on
Aboriginal cultural uses associated with these marine mammals”.
FCA noted that Project-related tankers carry the risk of significant, if not
catastrophic, adverse environmental and socio-economic effects should a spill
occur”. Ultimately, the governor-in-council could not rely on such a deficient
report in order to make its decision.
other ground challenging the validity of the decision was the finding that
Canada did not fulfil its duty to consult and accommodate Indigenous peoples’
legitimate concerns about the impact of the pipeline on their territories and
their constitutionally protected Aboriginal rights and title.
the Tsleil-Waututh Nation asserted Aboriginal title to the land, water, air and
marine resources. The Squamish Nation asserted Aboriginal title, Aboriginal
rights, the right to be self-governing and the right to fish. The Coldwater
Band asserted Aboriginal rights and title, as did the Sto:lo Collective, Upper
Nicola Band and Stk’emlupsemc te Secwepemc — all within their respective
territories. They had all engaged in Canada’s consultation processes despite
the limited funding to participate, the brief timelines and the consistent
failure of federal officials to respond to their concerns.
the end, the facts clearly show it was the First Nations groups who were acting
in good faith, despite Canada’s less than honorable actions.
is the first of a two-part series.
This article is Part 1 of a 2 part series which was originally published in The Lawyer's Daily on September 11, 2018. Part 2 will be published in a few days. The original link for Part 1 can be found here:
(photo by Michelle Girouard) This
article was originally published by The Lawyer’s Daily on October 12, 2018. The
federal government recently announced that it will not appeal the court
decision which quashed Canada’s approval of the Trans Mountain pipeline
expansion. Instead, Canada will engage with the 117 impacted First Nations in a
consultation process led by former Supreme Court of Canada Justice Frank Iacobucci. If
ever there was a sign that the government was going to force this pipeline
expansion through the review process, this is it. After all, federal elections
are just around the corner and Liberal Prime Minister Justin Trudeau has become
the face of the Trans Mountain pipeline dispute and all the broken promises
that it entails. Being
criticized from all sides — the provinces, industry, Canadians and Indigenous
peoples, and now the Federal Court of Appeal — Trudeau decided to bring out the
big guns: Iacobucci. There
is little doubt that he…
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