Canada not appealing TMX decision, opts for more consultation

TMX decision

Instead of appealing the TMX decision, the Trudeau government has appointed former Supreme Court of Canada justice Frank Iacobucci to oversee consultations with First Nations impacted by the Trans Mountain expansion project.  Trans Mountain Corporation photo.

TMX decision by Federal Court of Appeal quashed Trudeau government’s approval of Trans Mountain pipeline

The Canadian government says it will not appeal the decision by the Federal Court of Appeal quashing its approval of the Trans Mountain pipeline.  Instead, following the TMX decision, the Trudeau government has hired a former Supreme Court of Canada justice to oversee consultations with First Nations impacted by the project.

Frank Iacobucci, sat on the Supreme Court of Canada from 1991 to 2004 and is an expert in business and tax law.

At a press conference, Natural Resources Minister Amarjeet Sohi said the federal government has not put a deadline on the consultations, but added that they will build on prior work with 117 Indigenous groups.  Echoing the appeal court’s decision, Sohi said the consultations can be concluded in a “focussed and efficient” way.

As well, the project has been sent back to the National Energy Board to reconsider the impact of increased marine traffic resulting from more tankers traveling the waters off the BC coast.  The government has ordered the NEB to conclude its work in 22 weeks.

In August, the appeal court ruled that the NEB was wrong in its conclusion that it did not have jurisdiction over marine issues, including possible harm to killer whale populations and, as such, did not include recommendations for alleviating impacts.

The FCA said the federal government did not consult adequately with First Nations along the pipeline route.  The court said those conducting the discussions were only “note-takers” and said that the government did not make accommodations for specific concerns raised by the communities

Sohi said the federal cabinet will not make a decision on re-approving the pipeline until the NEB conclusions are received and consultations with Indigenous communities are complete.  However, he added that the pipeline is critical to expanding the Canadian oil industry’s market to beyond the United States.

The Minister said the government along with former justice Iacobucci will engage, consult and “where possible” accommodate First Nations concerns.  But, he added that those communities that are steadfast in their opposition to the TMX project will not be able to block it.

“We also understand that there might be groups that will still oppose this project,” he said. “That’s fine; that’s their right to do so. But that does not mean that if we fulfill our constitutional obligation to consult, that those groups may have a veto to stop the project.”

One of the communities in opposition, the Squamish Nation, says it still has serious concerns about the Trans Mountain pipeline expansion project.

“The Trudeau government tried to ram this project through our territory with a predetermined outcome and this was not acceptable to Squamish Nation or the courts,” Khelsilem, a spokesperson for Squamish Nation told The Globe and Mail.

He said his community is concerned that the federal government will just go through the motions and will not respect its aboriginal rights.

The federal government purchased the Trans Mountain pipeline system for $4.5-billion in a push to keep the project on track.

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