The Federal Court of Appeal has rejected six applications for judicial review of the re-approval of the Trans Mountain Pipeline expansion project, all of which raised arguments about the pipeline’s environmental impact. The court also gave the go-ahead to six applications that challenge the adequacy of the federal government’s additional consultations with First Nations following the court’s initial rejection of the approval.
The government and Trans Mountain, the two respondents in the case, took no position on 11 of the 12 leave applications “because they considered the threshold for leave to be quite low,” according to the reasons of Federal Court of Appeal Justice David Stratas. It was left to the court to determine which, if any, of the applicants for leave had what is known as a “fairly arguable case”.
With respect to the First Nations, the court said it would not allow the re-litigation of issues that were raised in the first challenge of the approval in 2018. The remaining issue was the adequacy of the second round of consultations between the federal government and First Nations from late 2018 through early 2019. “Whether the further consultation process was adequate is unclear,” Justice Stratas wrote. That is a “fairly arguable case” that should be heard by the Court of Appeal, he ruled.
Environmental arguments didn’t fare well, however. First of all, Justice Stratas found that many of the arguments being put forward either had been made in the initial 2018 appeal and were rejected, or could have been made then, but were not. Allowing those arguments to go forward would open the door to an endless spiral of litigation.
Justice Stratas also rejected the argument that the report on the impacts of project-related marine shipping was too flawed. A version of this argument had succeeded in the 2018 appeal, but not this time. Justice Stratas said that argument could not succeed, based on “the degree of examination and study of the issue of project-related marine shipping and related environmental issues in the new report.”
Justice Stratas also deferred to Cabinet, which ultimately decided that the public interest considerations of the project outweighed any adverse environmental impact. Cabinet would still have approved the project even if the environmental arguments had been included in the new report, he wrote.
At least one of the unsuccessful applicants, Ecojustice representing Raincoast Conservation Foundation and Living Oceans Society, said in a statement that it may consider the unusual step of trying to bring the matter before the Supreme Court of Canada.
“Going to the country’s highest court may seem like a drastic measure, but — in the midst of a climate emergency and biodiversity crisis — these are drastic times,” wrote Ecojustice lawyer Margot Venton.
The Federal Court of Appeal will set an expedited process to move the appeal forward given the public interest in the case.