Supreme Court Dismisses Indigenous Challenges to the Trans Mountain Expansion Project

By Max Christie

Author's Positionality Statement: This piece comes from the perspective of an Albertan and from a person who is not a member of an Indigenous community. I recognize the historical and contemporary adversity that Indigenous peoples face, particularly in regard to the Canadian justice system, and I at no point claim that I am speaking for or on behalf of any community that I am not entitled to represent.

Edited by Manvi Bhalla

On July 2nd, 2020, the Canadian Supreme Court dismissed Coldwater Indian Band, et al. v. Attorney General of Canada, et al (1). This case originated back in 2019 when various BC Indigenous communities (The Coldwater Indian Band, Tsleil-Waututh First Nation, Ts’elxweyeqw Tribes, and Squamish Nation) launched an appeal against the Federal Government’s most recent re-approval of the Trans Mountain Expansion Project (TMX), a pipeline expansion expected to triple the supply of diluted bitumen travelling between oilsands developments in Alberta and the port of Burnaby (2).

BACKGROUND FROM THE FEDERAL GOVERNMENT'S PERSPECTIVE

TMX was originally proposed in 2013 by the energy infrastructure company Kinder Morgan, with approval for the project originally coming in 2016. However, in 2018 the project was put on hold following a decision by the Federal Court of Appeal (FCA) that stated that the Federal Government did not properly consult with the Indigenous peoples who would be affected by the expansion and that it did not properly take into account the environmental impacts of the project (3). As a result of this decision coupled with a fear of further legal challenges from Indigenous and environmental groups, shareholders at Kinder Morgan voted to abandon the project, and the Federal Government purchased the existing pipeline for $4.4 billion later that year (2). Following additional consultations, the expansion was re-approved in June 2019, which started a new legal battle against the project by twelve environmental and Indigenous groups (4). The FCA heard six of these challenges (all from Indigenous groups), and in February 2020 unanimously sided with the Federal Government, citing that the re-approval process was reasonable and that of the 129 Indigenous communities consulted in relation to the project, 120 were either in favour or neutral in regard to it (5). Following the decision, the Indigenous leaders in question attempted to appeal the case to the Supreme Court, but they decided to deny the request, meaning that the FCA's decision is binding and that no more legal challenges will be accepted regarding the Federal Government’s re-approval of TMX (1). As is standard practice for the Supreme Court, no official reasoning was given as to why the request for appeal was denied.

FURTHER READING:

- Statement from the Canadian Minister of Natural Resources, Seamus O'Regan

- Statement from the Trans Mountain Corporation

GOVERNMENT OF ALBERTA'S STANCE

The Supreme Court’s decision was welcomed by proponents of the project, with Alberta Premier Jason Kenney calling the decision “…yet another critical victory for pipelines, for our prosperity (6),” and that “this is an affirmation that reconciliation also means . . . economic opportunity (6).” The Government of Alberta, both under Kenney and his predecessor Rachel Notley, has been a major proponent of TMX, emphasizing the project’s importance to the Albertan economy. Currently, oil and gas development is responsible (both directly and indirectly) for nearly half a million jobs and 30% of Alberta’s GDP (7). However, because Alberta is so heavily reliant on a single customer, the United States, for its oil, most of it is sold below normal market prices (2). Western Canadian Select, produced in Alberta, consistently trades around $20 per barrel below the price of the North American benchmark - West Texas Intermediate - and that price disparity leads to billions of dollars of lost revenue for Canadian oil and gas companies (and via royalties, provincial governments) per year (8). By expanding the current Trans Mountain pipeline, the oil and gas industry is hoping to expand to growing markets in Asia, thus greatly increasing the revenue from the current production of Western Canadian Select (2). The additional royalties collected from this increased revenue are predicted at $46.7 billion dollars during the first 20 years of operation, with $5.7 billion going to the Government of BC, $19.4 billion going to the Government of Alberta, and $21.6 billion going to the rest of Canada (9).

FURTHER READING:

- Statement from BC Premier John Horgan

INDIGENOUS-LED ADVOCACY GROUPS' STANCE

Many Indigenous and environmental groups continue to oppose the project. The Indigenous leaders that launched the appeal are still concerned about the effects that TMX could have on marine wildlife and drinking water (6). To allow for space to quote First Nations leaders directly on this issue:

Tsleil-Waututh Nation Chief Leah George-Wilson, has commented that, “[today] is not the end of our story”. She stated that she will consult with her community before deciding what to do next. Squamish Nation councillor, Chris Lewis, said that the future holds focusing "on protecting our territory to the full extent possible", and this involves more research on the impact of bitumen. Coldwater Chief Lee Spahan has commented that his community will continue to advocate against the planned pipeline route, as it puts the sole source of drinking water for the First Nation, at risk. (Quote source here)

This decision comes days before a victory for Indigenous-led environmental advocacy, namely for the Standing Rock Sioux Tribe and other Indigenous-American environmental activist groups, against the Dakota Access Pipeline, which was ordered to be emptied by August 5, 2020 after 4 long years of protests (More info here).

Despite the resilient and longstanding advocacy efforts led by Indigenous peoples in Canada, the Supreme Court's recent decision provides the green light for TMX to go ahead, with construction expected to be completed by the end of 2022 (9).

FURTHER READING:

- Statement from the Tsleil-Waututh First Nation

References:

(1) https://decisions.scc-csc.ca/scc-csc/news/en/item/6899/index.do

(2) https://calgaryherald.com/commodities/energy/newsalert-supreme-court-dismisses-indigenous-appeal-of-trans-mountain-approval/wcm/a97651d7-0f0c-4096-a734-6e20591d6ef2/

(3) https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/343511/1/document.do

(4) https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/421006/index.do

(5) https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/460815/index.do

(6) https://calgaryherald.com/news/politics/another-critical-victory-kenney-applauds-supreme-court-dismissal-of-tmx-appeal

(7) https://context.capp.ca/energy-matters/2019/btn_oil-and-gas-is-backbone-of-alberta-economy

(8) https://www.cbc.ca/news/business/wti-wcs-gmp-dwarkin-rseg-oil-1.4491527

(9) https://www.transmountain.com/project-overview/

(10) https://www.instagram.com/p/CCMphofHi6s/

(11) https://www.westernstandardonline.com/2020/07/supreme-court-clears-way-for-tmx-pipeline-expansion/