This morning the Federal Court of Appeal ruled on a challenge to the Kinder Morgan pipeline brought by multiple First Nations, including the Tsleil-Waututh and Squamish on B.C.'s south coast.
The court dismissed many of the challenges to the National Energy Board's recommendation to approve the project, finding that that report cannot be judicially reviewed, but upheld "applications challenging [the] Order in Council approving expansion." Their finding quashes the order-in-council approving the pipeline, nullifying the certificate of approval granted by the federal government. The court has returned the matter to the government to correct two flaws: 1) a flawed National Energy Board review process and 2) a failure to fulfill the legal duty to consult Indigenous peoples.
The court has ordered the government back to the drawing board, requiring a redo of the NEB review process and the government's consultation with Indigenous peoples.
The implications of this decision are still being measured, but it almost certainly will add years of delays to the pipeline project if the government chooses to appeal this decision to the Supreme Court or decides to restart the consultation process.
The court ruling halts construction on the pipeline, leaving the project in legal limbo for the foreseeable future.
We're poring over the full decision now, and this post will be updated with more details as they become available. A summary of the court's decision is available here.
Here's the relevant passage from the court's summary of the decision:
Decision: The applications for judicial review challenging the report of the Board are dismissed. The Board’s report is not subject to judicial review. The Order in Council is the only matter properly subject to review. The applications for judicial review challenging the Order in Council are allowed. The Order in Council is quashed, rendering the certificate a nullity. The matter is remitted to the Governor in Council to remedy two flaws, described below, and, after that, for a fresh decision.
The validity of the Order in Council was challenged on two main grounds: first, the Board’s process and findings were so flawed that the Governor in Council could not reasonably rely on the Board’s report; second, the Government of Canada failed to fulfill the legal duty to consult Indigenous peoples. The Court accepted both grounds.
The specifics of their rejection of the NEB process:
The Board unjustifiably defined the scope of the project under review not to include project-related tanker traffic. This exclusion permitted the Board to conclude that, notwithstanding its conclusion that the operation of project-related marine vessels is likely to result in significant adverse effects to the Southern resident killer whale, the project was not likely to cause significant adverse environmental effects. The unjustified exclusion of project-related marine shipping from the definition of the project rendered the Board’s report impermissibly flawed: the report did not give the Governor in Council the information and assessments it needed in order to properly assess the public interest, including the project’s environmental effects—matters it was legally obligated to assess. As a result, the Governor in Council must refer the Board’s recommendation and its terms and conditions back to the Board, or its successor, for reconsideration as directed by the Governor in Council within the time specified by the Governor in Council.
On the failure to adequately consult First Nations:
The Government of Canada was required to engage in a considered, meaningful two-way dialogue. However, for the most part, Canada’s representatives limited their mandate to listening to and recording the concerns of the Indigenous applicants and then transmitting those concerns to the decision-makers. On the whole, the record does not disclose responsive, considered and meaningful dialogue coming back from Canada in response to the concerns expressed by the Indigenous applicants. The law requires Canada to do more than receive and record concerns and complaints. Overall, on the issue of consultation with Indigenous peoples, while in law Canada is not to be held to a standard of perfection it failed to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns. The duty to consult was not adequately discharged. As a result, Canada must re-do its Phase III consultation. Only after that consultation is completed and any accommodation made can the project again be put before the Governor in Council for approval.