Court allows legal challenge against Trans Mountain just as construction resumes on pipeline – by Justine Hunter and Jeffrey Jones (Globe and Mail – September 5, 2019)

The federal Court of Appeal has allowed a legal challenge to the Trans Mountain Pipeline expansion project to proceed, just as construction – delayed by earlier court battles – is resuming both in British Columbia and Alberta.

A judicial review will determine whether Ottawa has adequately consulted with Indigenous communities about the project. The court, in a ruling released Wednesday, denied applications for a review on environmental matters, but ecology groups say they are now considering an appeal to the Supreme Court of Canada.

The court was emphatic that opposition to the pipeline, led by six First Nations communities, is not legal grounds to stop the $7.4-billion expansion project. But, in an unusually prescriptive ruling, the court has directed an expedited hearing to determine if there are grounds to overturn the project for a second time.

Federal Court of Appeal Justice David Stratas said in his ruling that consultation between the federal government and First Nations must include meaningful, two-way dialogue. But, he added: “The duty to consult does not require the consent or non-opposition of First Nations and Indigenous peoples before projects like this can proceed. … Under the duty to consult, First Nations and Indigenous peoples do not have a right to veto a project.”

However, he said the federal government did not, during the hearing, make the case that its consultation was sufficient: “The respondents have withheld their evidence and legal submissions on these points.”

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