Environmentalists hoping Kinder Morgan’s pipeline proposal will terminate under a judge’s ruling got a boost recently after a major pipeline project was quashed in a courtroom.
Northern Gateway’s twin pipeline proposal was struck down in the Federal Court of Appeal after two of three justices ruled a critical component of federal government consultation with First Nations “fell well short of the mark.”
Many impacts of the project were left “undisclosed, undiscussed and unconsidered,” according to the judgment penned by judges Eleanor R. Dawson and David Stratas.
As the Tsleil-Waututh awaits the Federal Court of Appeal’s verdict on their 2014 challenge to Kinder Morgan’s Trans Mountain pipeline expansion, the news is very promising, according to Rueben George, manager of the Tsleil-Waututh’s Sacred Trust Initiative.
“I’m really confident in the Canadian constitution protecting our indigenous rights,” he said.
While the consultation process on the Northern Gateway pipeline wasn’t good, “the Kinder Morgan process was worse,” George said.
George pointed to the appointment of Steven Kelly to the National Energy Board. Kelly had previously submitted an economic argument in favour of the Kinder Morgan expansion. His evidence has since been stricken and he is not reviewing the Kinder Morgan file.
Still, George said Kelly’s appointment was a conflict of interest.
“Their whole process from the very beginning, we see, was flawed,” he said.
While the Tsleil-Waututh were afforded the opportunity to make a presentation to the NEB detailing their concerns around the pipeline, George said that falls well short of the nation-to-nation consultation that should take place.
“Having a conversation with somebody isn’t a consultation,” he said.
George’s comments were echoed by Gavin Smith, staff counsel for West Coast Environmental Law, the firm guiding the Sacred Trust Initiative's legal challenge.
The court’s decision on the Northern Gateway pipeline is “certainly applicable to the Kinder Morgan scenario,” Smith said.
Consultation on the Trans Mountain pipeline expansion has been: “still more abbreviated than was carried out for Northern Gateway,” he said.
While there is no “one-size-fits-all for adequate consultation,” Smith said the government has to take into account “risks and impacts” to the specific rights
of First Nations.
“This case should be causing the federal government to take a good long hard look at how it’s listening to First Nations that are really being clear that this project is having a risk of serious impacts on their rights and title,” he said.
The Tsleil-Waututh filed a legal challenge against the pipeline in 2014, alleging the NEB review was unlawful because the federal government had failed to engage the band. Arguments recently concluded and the court will likely make their decision later this year, according to West Coast Environmental Law counsel Eugene Kung.
