Native protest lawsuits failed Tuesday to overturn national approval of the Trans Mountain Pipeline expansion (TMX) in a court verdict that enforced limits on tribal power to block industry.
The Canadian Federal Court of Appeal ruled that the federal government’s second, revised TMX approval last June fixed “limited flaws” in aboriginal consultation that contributed to its August 2018 decision to overturn the first authorization.
Canada’s official national goal of “reconciliation” with its original inhabitants “does not dictate any particular substantive outcome” for industry, governments or native communities, said the latest ruling. “Were it otherwise, Indigenous peoples would effectively have a veto over projects such as this one. The law is clear that no such veto exists.”
The appeal court said, “Where there is genuine disagreement about whether a project is in the public interest, the law does not require that the interests of Indigenous peoples prevail.”
The British Columbia (BC) government last month also lost its final legal appeal to stop the expansion.
Construction has begun on C$9 billion ($6.8 billion) TMX to triple capacity to 890,000 b/d in the 1,147-kilometer (688-mile) export route to Vancouver for Alberta thermal oilsands production, Canada’s top natural gas user.
The court decision to uphold federal approval of the work said, “Significantly, the consultation process…invited the participation of 129 Indigenous groups potentially impacted by the project and, in the end, more than 120 either support it or do not oppose it. As well, benefit agreements had been signed with 43 Indigenous groups as of June 22, 2019.”
“This was anything but a rubber-stamping exercise,” said the unanimous ruling written by Justice Marc Noel. “The end result was not a ratification of the earlier approval, but an approval with amended conditions flowing directly from the renewed consultation.”
Only four BC bands sued to stop TMX after two groups dropped out of a lineup of six tribes that initially filed lawsuits seeking to overturn the project approval a second time.
The ruling said Canada’s native reconciliation policy “looks forward. It is meant to be transformative, to create conditions going forward that will prevent recurrence of harm and dysfunctionality but also to promote a constructive relationship, to create a new attitude where Indigenous peoples and all others work together to advance our joint welfare with mutual respect and understanding.”
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