An appeals court in Canada on Tuesday dismissed a recent complaint from First Nations peoples seeking to delay expansion of the Trans Mountain pipeline. The project intends to add capacity for delivery from Alberta’s oil sands to the British Columbia coast, and four First Nations’ groups had sued to prevent the project from going forward. The indigenous plaintiffs alleged that the government inadequately consulted with them in approving the pipeline expansion.
A similar complaint succeeded in 2018, when a Canadian court ruled that the consultation had indeed been inadequate. The government re-approved the pipeline in June 2019 after going back to address the shortcomings identified by the court. The First Nations groups in the latest lawsuit, however, again alleged numerous deficiencies in the consultation process.
The Federal Court of Appeal saw its role in the dispute decided Tuesday as a limited one: although the flaws it identified in the first proceeding “were significant, they were restricted to precise issues within the overall consultation process.” Thus, this second decision concerned only whether “the Governor in Council could reasonably conclude that the flaws identified in [the 2018 case] were adequately remedied by the renewed consultation process.” Additionally, the court said that “the Governor in Council was entitled to measure the adequacy of the second consultation process in light of what was possible in the circumstances.”
The court dismissed the case because of this narrowed scope and its reasoning that the duty to consult “does not dictate any particular substantive outcome.” Indigenous peoples do not have that ability to effectively veto project proposals, and instead, “their concerns can be balanced against ‘competing societal interests.'” The court found the government’s decision to permit the pipeline reasonable in this light, and the Trans Mountain project is now set to proceed.