From December 16-18, 2019 the Federal Court of Appeal panel of judges, composed of Chief Justice Marc Noël with Justices Denis Pelletier and John B. Laskin, heard oral arguments on the latest round of appeals of the approval of the Trans Mountain pipeline and tanker project (TMX). The case has the potential to quash the federal approvals and halt construction, as we saw in the 2018 decision Tsleil-Waututh vs Canada.
The Federal Court of Appeal (FCA) courtroom was packed for most of the hearing. In addition to an overflow room with a closed-circuit feed, the hearing was also livestreamed on the FCA website – a useful step for enhancing the open court principle.
I observed the entirety of the hearings in person, in the overflow room and on the livestream. Below are some highlights of the oral hearings. This is not meant to be a comprehensive review of what happened during the hearing.
At the close of the hearing, Chief Justice Marc Noël thanked the lawyers for their submissions and summarized the feeling in the room with this quote of the day:
“It feels like an acrimonious divorce. Obviously there’s a lot of tension here.”
This case is the second round of judicial review in relation to Trans Mountain, following a successful appeal by six First Nations in 2018. Since that decision, the federal government ordered the National Energy Board to consider the impacts of marine shipping, which it had excluded in the first round. The federal government also conducted an additional round of constitutionally required Indigenous consultation, after the FCA found that previous efforts “fell well below the mark set by the Supreme Court of Canada.”
After federal Cabinet re-approved the project on June 18, 2019, a number of parties sought leave (or permission) to appeal the re-approval. On September 4th, 2019 the FCA issued a written decision granting leave to six First Nations, but limited the grounds of appeal to the adequacy of Indigenous consultation.
The leave decision itself represented a departure from the court’s usual practice of deciding on leave without written decisions, as has been noted by legal scholars. The leave decision was appealed to the Supreme Court of Canada by three excluded environmental groups, and two First Nations (Tsleil-Waututh and Squamish) whose grounds of appeal were limited in the current FCA case.
The Supreme Court has not ruled on these leaves to appeal, and the FCA case on consultation continued to move forward at a break-neck pace (for courts at least).
If the Supreme Court of Canada does grant leave, and the previously-excluded applicants are successful, the FCA could hold an additional hearing on the issues excluded from the consultation case, namely whether federal cabinet complied with statutory requirements under the Canadian Environmental Assessment Act, 2012, and the Species at Risk Act.
Highlights from the Federal Court of Appeal hearing
Day 1 started with a press conference held by three of the four First Nation applicants: Tsleil-Waututh, Squamish and Coldwater. Leaders from each of the nations were drummed in by Tsleil-Waututh and Squamish youth, and the spokespeople reiterated their resolve to use the legal tools available to defend their rights and interests.
The hearing started with Chief Justice Noël acknowledging all counsel for their assistance in moving the proceeding along on a very tight schedule. Indeed, in about three months (lightning fast for courts), the parties filed tens of thousands of pages of affidavit evidence, cross-examined on those affidavits, argued motions, and filed written arguments before the oral hearing even started.
The Tsleil-Waututh Nation, whose territory around Burrard Inlet covers the pipeline’s west coast terminal, was the first applicant to present their case. Tsleil-Waututh’s lawyer Scott Smith outlined the main theory of the applicants: that Canada repeated many of the same errors from the 2018 Tsleil-Waututh case.
Specifically, the applicants argue that Canada failed to engage in meaningful two-way dialogue, refused to depart from the NEB report, and proposed accommodation measures that were generic, inadequate and did not meet the standard set out by the Supreme Court of Canada.
Tsleil-Waututh (TWN) told the court that Canada had suppressed and then altered important documents that were relevant to having a meaningful dialogue. Those documents included peer reviews of TWN and Squamish expert reports performed by Canada’s scientists, and showed that the government scientists agreed with the Nations about the need for more research on oil spill risks.
Canada provided TWN with a copy of the reviews after the final day of consultation meetings, and provided the original version after the re-approval on June 18th, 2019. An examination of these documents revealed that the initial copy provided to TWN had been substantially altered.
The effect, according to Smith, was to “neuter”’ the conclusion of the reviews. The original documents largely agreed with the conclusions of the TWN and Squamish experts, namely that more studies were required to understand the behaviour of diluted bitumen in a spill. The altered documents diminished the level of agreement, and asserted that these studies were not required before the decision was made.
TWN also addressed the eight accommodation measures proposed by Canada and argued that they were generic, pre-determined, and not responsive to the specific and measured concerns that the Nation had raised.
Finally, TWN argued that since Canada was also the owner and proponent of the project, the government did not enter into consultation with an open mind, as required by law. Smith pointed to the hundreds of public statements by Cabinet members in favour of the project, ensuring that it would be built.
“We’re not talking about landing spaceships on the moon here.”
- Lawyer Scott Smith, discussing the state of science on the behaviour of diluted bitumen, after revealing that the Canadian Associationof Petroleum Producers refused to provide a sample for Canada, TWN and Squamish to study.
Coldwater Indian Band is part of the Nlaka’pamux Nation, with territories around Merritt, BC. Coldwater’s focus from the start has been the protection of their aquifer, the only source of drinking water for the community.
Coldwater had been working with Canada and Trans Mountain during consultation to jointly conduct a hydrological study, required as a condition of the project’s approval. However, that study did not happen. In the end, Canada unilaterally imposed a change to the condition, adding a tight deadline for the study to be completed by December 31, 2019.
According to Coldwater, this made the condition worse, as it did not provide enough time to gather baseline data in order to do the study. At this point, it is unclear if the study will be completed at all.
“It is hard to conceive of an issue more fundamental to Canada and reconciliation than the provision and protection of clean drinking water on First Nations reserves.”
- Lawyer Matthew Kirchner
The Ts’elxwéyeqw Tribes are composed of seven Sto:lo bands located in the Fraser Valley around Chilliwack. The Tribes have established fishing rights under previous Supreme Court of Canada decisions, and they argued that they had the same (or worse) level of consultation as other First Nations whose rights had not yet been confirmed by Canadian courts. Ts’elxwéyeqw also argued that Canada failed to justify the infringement of these rights, as is required after the Tsilhqot’in case.
Ts’elxwéyeqw’s lawyer Joelle Walker reminded the court that accommodation measures need to be responsive to the unique and specific interests of each nation, and not rely on future-looking and generic accommodation measures.
“None [of the accommodation measures] have been developed, and there is no indication about how these initiatives would be incorporated into the regulatory process. In fact, these won’t even be known until the train has left the station.”
- Lawyer Joelle Walker
Squamish Nation’s lawyers Matthew Kirchner and Michelle Bradley kicked off Day 2 by reviewing the consultation record. Like the other First Nations applicants, they argued that the consultation was not a two-way dialogue, was too short, and was not meaningful.
Squamish was also affected by the suppressed and altered documents mentioned above. Indeed, Squamish was not even provided copies of the documents until after the decision to re-approve the project.
Squamish’s lawyers discussed the failure of the accommodation measures to address cumulative effects of oil transport in the Salish Sea, arguing that the consultations should have looked at Trans Mountain’s contribution to the degradation of the Sea.
“The camel’s back is not broken, but we don’t know how many straws it will take. With respect to the TMX, we are not just adding one straw, we’re adding 13.9% more straws, a couple of bales, and we are hoping it won’t break the camel’s back.”
- Lawyer Michelle Bradley, on the cumulative effects of industry in the Salish Sea
Attorney General of Canada
Canada started its submissions by outlining its view of the case: the 2018 Tsleil-Waututh decision found that the design of consultation was reasonable, but the execution was deficient. Canada’s task was to address these deficiencies, and it relied on the court’s statement that addressing the First Nations’ specific and focused concerns “may serve to make consultation brief and efficient.”
In Canada’s view, the redesigned process was executed in a manner that was focused and meaningful. The government argued that it did engage in two-way dialogue and that it entered into consultation with an open mind.
Canada pointed to the fact that it had doubled its consultation teams in preparation for the consultation efforts. It appeared as if the number of lawyers representing Canada had also doubled, with eight lawyers working on the file.
A different lawyer addressed each of the First Nations’ arguments.
One of Canada’s lawyers, Dayna Anderson, discussed TWN’s allegation of suppressed and altered documents. She characterized the documents as “internal notes” that were never meant to be shared, and downplayed their significance in allowing for a two-way dialogue. The fact that Canada shared these documents at all was held up as an example of Canada’s transparency in the process.
Anderson argued that TWN did not engage with Canada in good faith, and that “TWN sent an endless torrent of demands and legal issues for Canada to respond to.”
Lawyer Jon Khan addressed Coldwater’s arguments next. Khan argued that Coldwater did not engage meaningfully with Canada and Trans Mountain, arguing that the continued focus on the existing pipeline was a “historical grievance” and therefore not about the expansion. Khan argued that Coldwater stopped corresponding with Canada for six weeks from late March to early May 2019, and suggested that Coldwater “frustrated the process.”
Canada’s response to arguments from Ts’elxwéyeqw was that their established fishing right did not require the government to engage in a “justification analysis” for the infringement of rights. Essentially, the lawyers argued that Canada had fulfilled its obligations for consultation with the Tribes.
Similar to Tsleil-Waututh, Canada’s response to Squamish Nation focused on diminishing the importance of the suppressed and altered peer review documents.
“Canada went well beyond the requirements for consultation, always with reconciliation in mind.”
- Attorney General of Canada lawyer Jan Brongers
Trans Mountain lawyer Maureen Killoran started Day 3 of hearings by reviewing the NEB’s TMX hearing record, and focused on the conditions included in the approval as evidence that the concerns raised by the First Nations would be addressed.
Killoran identified the new role of Trans Mountain following the purchase of the project by the federal government in 2018. In this round of consultation, Trans Mountain was now a Crown corporation, and was available to attend consultation meetings. In that regard, Killoran complained that Trans Mountain was excluded from consultation meetings with Squamish and TWN.
Trans Mountain also focused on the topic of relitigation, arguing that any issues that were raised in the 2018 case could not be argued in this case.
“TWN and Squamish wanted to have their expert studies on diluted bitumen re-evaluated by Canada after the NEB did not agree with their conclusions, preferring Trans Mountain’s evidence. They don’t get another kick at the cat...I mean can.”
- Lawyer Maureen Killoran
In addition to the Indigenous applicants, the federal government and Trans Mountain, the governments of Saskatchewan and Alberta also intervened in the hearing in support of TMX.
Saskatchewan lawyer James Fyfe argued that the oil industry was vitally important to the province’s economy, and that the project would help support this struggling sector.
“Reconciliation should not be allowed to unduly interfere with Canada’s constitution.”
- Lawyer James Fyfe
Alberta lawyer Stephanie Latimer focused on the importance of certainty for investors and the importance of TMX to the Alberta economy.
“Regulatory and legal uncertainty negatively impacts investor confidence.”
- Lawyer Stephanie Latimer
Each of the applicant First Nations had 15 minutes at the end of the hearing to reply to the respondent and intervenor’s submissions.
TWN focused on the suppressed and altered documents, and argued that they were indeed key documents that should have been shared earlier. In reviewing the comparison of the two documents, with changes highlighted in blue and red, Scott Smith said “it is lit up like a Christmas tree with changes.”
Squamish addressed Trans Mountain’s allegation that they were excluded from meetings and pointed to documents that showed that Trans Mountain was indeed invited to some meetings but did not attend.
Coldwater went into detail about the six-week period of non-communication and pointed to two letters and a meeting with Trans Mountain during that period, in which much work was being done. Matthew Kirchner even highlighted a letter from Trans Mountain CEO Ian Anderson that praised the progress made during this period.
Coldwater also clarified the focus on the existing pipeline, rejecting the characterization of their arguments as “historical grievances.” Kirchner pointed out that the existing pipeline currently runs through Coldwater’s reserve, has unresolved issues around compensation and leaks, and would see even more oil pass through it, should the expansion proceed.
Finally, Ts’elxwéyeqw Tribes argued that their established rights do indeed require a justification analysis and not deeper consultation. Joelle Walker also clarified that the rules about relitigation only applied to issues that had already been decided.She explained that the issues raised by Ts’elxwéyeqw had not yet been decided upon and therefore should not be considered relitigation..
Wrapping up for the holidays
The hearing ended on Wednesday afternoon, with Chief Justice Noël thanking everyone for their time and their submissions. As anticipated, the court did not issue a decision at the conclusion of the hearing, and reserved judgement for a later date so that the panel of judges could wrap their heads around the issues (and the tens of thousands of pages of documents) to issue a decision ‘as soon as practical.’
Hopefully the feeling of an acrimonious divorce won’t ruin the festive season for anyone. Merry holiday greetings!
Photo credit: Eugene Kung