Event4 February 2020Action

Federal Court of Appeal upholds the second Trans Mountain approval

In Coldwater First Nation v. Canada (2020 FCA 34), the Federal Court of Appeal dismissed the challenges brought by the Coldwater Indian Band, the Squamish Nation, the Tsleil-Waututh Nation and seven nations represented as Ts'elxwéyeqw to the June 2019 approval of the Trans Mountain expansion. It found no basis for interfering: cabinet could reasonably conclude that the renewed consultation had remedied the flaws the court identified in 2018.

Date

4 February 2020

Kind

Court ruling

Where

Canada

Evidence

Action: Something was done: a law switched on, a tariff imposed, money committed. How evidence is weighed

Who

Tsleil-Waututh Nation (acted); Coldwater Indian Band (acted); Squamish Nation (Skwxwu7mesh Uxwumixw) (acted)

Sources

• Federal Court of Appeal, “Coldwater First Nation v. Canada (Attorney General), 2020 FCA 34” (external site), 4 February 2020. source record

Projects

• Trans Mountain (TMX), existing system

Claims that rest on this event

• ComplicatesMechanism

  The one-year review clock is soft (study time is excluded and extensions are allowed). What slows the build-out is First Nations lawsuits and the courts, whatever Washington intended; but in the record so far they delay projects and send approvals back more often than they stop them, and benefit agreements have ended several of the suits.

  The Federal Court of Appeal upheld the second Trans Mountain approval in 2020: after renewed consultation, the courts let the pipeline go ahead, and it was built.

• SupportsMechanism

  Consultation gives First Nations no veto. Courts send approvals back for more consultation but rarely end projects: Trans Mountain's approval was quashed in 2018, granted again in 2019, and the pipeline was built. A nation that objects usually ends with an agreement or with an approval over its objection, so a nation that opposes and later signs reveals nothing about its motive. Provinces and towns holding the same lever end the same way.

  The Federal Court of Appeal upheld the second approval in 2020, dismissing the nations' challenges; the pipeline was built.