Introduction
Construction of the Trans Mountain Pipeline Expansion Project (“the Project”) continues to move forward. Meanwhile, four Indigenous groups opposed to the Project have filed an application asking that the Supreme Court hear their legal challenge, which earlier this year, was dismissed by the Federal Court of Appeal. This application for leave is the last surviving legal hurdle to the Project. It is likely to be a number of months before the Supreme Court decides whether or not to grant leave and hear the challenge.
Background
The Project has been the subject of a number of legal challenges, including reviews of the Federal Government’s Project approvals and a legislative amendment implemented by the Province of British Columbia.
British Columbia’s Failed Attempt to Regulate “Heavy Oil”
In 2018, the British Columbia Government announced amendments to the provincial Environmental Management Act aimed at regulating the transport of “heavy oil” through the province. The proposed amendments would have effectively prevented the Project from proceeding. In May 2019, the BC Court of Appeal unanimously held these amendments to be beyond the scope of provincial powers, a decision that was affirmed by the Supreme Court of Canada in January 2020, in oral reasons delivered from the bench (immediately after the hearing).
Court Challenges of Project Approvals
The Project was initially approved by the Governor in Council in November 2016. In August 2018, the Federal Court of Appeal quashed that approval and sent the decision back for further consultation and assessment.
In June 2019, the Governor in Council approved the Project for a second time. Shortly thereafter, twelve parties applied for judicial review of the approval. Before proceeding, each party was required to seek leave from the Federal Court of Appeal.
In September 2019, in a single set of reasons, (the “Scoping Decision”) the Federal Court of Appeal dismissed six of twelve motions for leave to appeal the second Project approval, including the motions of Raincoast Conservation Foundation and Living Oceans Society. The Court also narrowed the issues to be heard on judicial review to whether the Crown’s second round of consultation respecting the Project sufficiently addressed the shortcomings in the earlier consultation process.
Ultimately, in February 2020, the Federal Court of Appeal held that the Federal Government’s consultation with Indigenous groups was meaningful, reasonable and in accordance with the Crown’s duty to consult (the “Consultation Decision”).
Applications for Leave to Appeal the Scoping Decision
On November 4, 2019, Raincoast Conservation Foundation and Living Oceans Society filed an application with the Supreme Court of Canada for leave to appeal the Federal Court of Appeal’s refusal to hear their appeals of the Project decision. The Supreme Court of Canada dismissed the application on March 5, 2020, ending all avenues for legal challenge initiated by these groups.
In parallel, Squamish Nation and Tsleil-Waututh Nation each sought leave to appeal the Federal Court of Appeal’s narrowing of the issues in the Scoping Decision. The Supreme Court of Canada also dismissed these applications on March 5, 2020.
Taken together, these three dismissals by the Supreme Court of Canada narrowed the available avenues of recourse before the courts in relation to the Project.
Applications for Leave to Appeal the Consultation Decision
In early April 2020, four Indigenous groups, Tsleil-Waututh Nation, Squamish Nation, Ts'elxwéyeqw Tribes and Coldwater Indian Band announced that they are seeking leave to appeal the Consultation Decision.
Once Canada has filed its response, the Supreme Court is likely to take a number of months before ruling on whether to hear the Indigenous groups’ appeal. If leave to appeal is refused, this will be the end of the line of legal challenges to the Project approval, and should provide the Project with the legal certainty it has long awaited.
