The Squamish Nation has lost a legal bid in B.C. Supreme Court to scrap the provincial government’s approval of Kinder Morgan’s Trans Mountain pipeline project.
The Squamish Nation leadership filed a petition in the court last year alleging the provincial government’s approval of the project in January 2017 had been made without adequate Aboriginal consultation guaranteed by the Charter of Rights and Freedoms.
In a decision released Thursday, the B.C. Supreme Court rejected that argument, although the Squamish Nation is still awaiting a decision from a higher court that could see the project scuttled.
“We were hopeful that by launching the case, we would be able to use all legal avenues to defend our rights. We’re super disappointed by the decision and we had hoped for a better outcome but we will continue on with our fight in the Federal Court of Appeal, which the court today acknowledges has much more significance as it relates to approval of the pipeline,” said Khelsilem, elected councillor and spokesman for the Squamish Nation. “We have joined five First Nations in challenging the federal government’s violation of our Indigenous rights. Our legal team is reviewing the reasons and the Squamish Nation Council will explore an appeal based on legal advice.”
During the National Energy Board’s hearings in 2016, the province argued Kinder Morgan’s application had too many gaps in the information to support the project, a position with which the Squamish Nation agreed. The province later reversed its position and granted the certificate without those gaps of information being filled or consulting the Squamish, the claim alleged.
In writing his reasons for the decision, Justice Christopher Grauer warned outright that his ruling would not address any of the big picture issues Canadians, British Columbians and the First Nations have about the pipeline.
“This case is not about whether the TMX should or should not go ahead. It is not about whether the TMX is in the national interest, or presents an unacceptable risk of environmental harm. These are policy issues, to be determined by the elected representatives of the people,” Grauer wrote. “What this case does concern is whether British Columbia adequately fulfilled its undoubted duty to consult Squamish in relation to its decision to issue an EAC (environmental assessment certificate) to the project. By itself, it can have no impact on the decision of the federal government that this project shall proceed, other than delay.”
The province had limited jurisdiction in the approval process, compared to the federal approval, Grauer noted.
“British Columbia cannot say ‘no’ to the TMX or any fundamental part of it, but may say ‘yes, but with some conditions’ after proper consultation,” he wrote.
Although the province’s actions with respect to consulting the Squamish before granting approval were arguably lacking, they were lawful, Grauer decided.
“There is no doubt that British Columbia could have done more, and had the opportunity to do so,” he said, noting that, had there been a different government in power in January 2017, the outcome might have been different. “But the question here is not whether British Columbia could have done more, but rather, whether the approach it took was adequate and consistent with the honour of the Crown in all of the circumstances.”
The Texas-based company has imposed a deadline of May 31 for assurances that the project can proceed in B.C. before pulling the plug. That timeline does nothing to change the Squamish Nation’s outlook, Khelsilem said.
“There are still requirements that need to be met including the rights of Indigenous people and the rights of the Squamish people,” he said.
