The Federal Court of Appeal could send Kinder Morgan's Trans Mountain pipeline back to square one if a legal challenge filed Friday by the Tsleil-Waututh Nation is successful.
The Tsleil-Waututh alleges the National Energy Board review of the pipeline was unlawful due to the federal government's refusal to engage the band. Until that consultation had begun, the NEB had no legal authority to begin their review, according to the nation.
The goal of the action is to cause a delay that may allow anti-pipeline activists to unite, according to Tsleil-Waututh Chief Maureen Thomas.
"That delay may bring on support from other First Nations and other people here in Canada," she said.
If approved by the NEB and federal cabinet, Kinder Morgan's pipeline - which runs from Edmonton to Burnaby - will nearly triple its capacity, going from 300,000 to 890,000 barrels of diluted bitumen per day. Traffic in Burrard Inlet would also jump from five tankers carrying oil each month to 34.
The federal government treated the nation "like we don't exist," according to
Thomas.
"The government had the opportunity to sit at the table with us and to converse with us to try and find a solution to this issue but they refused," she said. "Today, it's a sad day for me. I feel the government has let us down again; they have not learned from past lessons."
The Federal Court of Appeal provides the best opportunity for the band
to extinguish the proposed pipeline expansion, according to Tsleil-Waututh attorney Merle Alexander.
"The decisions that have been made are final decisions already, and if they're not corrected now, they'll prejudice the entire environmental assessment process," he said.
In 2013, Aboriginal band the Dena Tha took a similar challenge to court,
complaining they were not consulted over B.C.'s sale of 21 parcels of land, some of which were used for fracking.
While the Dena Tha lost the suit, B.C. Supreme Court Justice Christopher Grauer stated the band had to be consulted in his judgment.
"The Dene Tha similarly were not in any way consulted," Alexander said. "That's exactly the
case here."
The federal government's failure to consult the band amounts to a dereliction of their constitutional obligation, according to Alexander.
However, the case may boil down to the allegation the NEB essentially overstepped their jurisdiction, according to Alexander.
The Canadian Environmental Assessment
Agency has oversight of the expanded Burnaby petroleum storage facility and the new marine terminal, according to Alexander.
"We're going to take Canada to court," announced Tsleil-Waututh public engagement manager Rueben George, who promised to use all legal means to fight what
he portrayed as a onesided review process. The Tsleil-Waututh's case is the first legal challenge made by a First Nation against the pipeline.
With the Burrard Inlet reflecting sunlight behind him, George pointed across the waters to Kinder Morgan's facilities.
"Everything we get out of the water is goodness. Right over there is Kinder Morgan, and what they put into the water isn't good," he said. "Because the Canadian government is not looking out for the people, we will."
George said he fears spiraling cancer rates and environmental destruction from the project.
The Tsleil-Waututh was supported by North Shore No Pipeline Expansion, which recently won intervener status at the NEB hearings.
NOPE will likely focus on health problems that could arise in the event of a diluted bitumen spill.
