An August 30 decision by the Federal Court of Appeal has quashed the approval of the Trans Mountain oil pipeline expansion, directing that the the consultation with First Nations be re-done before the approval can again be considered. The Court’s decision was based on two grounds: 1). Failure to adequately consult with First Nations – characterizing the interaction as more “note-taking” than consultation – and 2) the National Energy Board did not consider the environmental impacts of oil tanker traffic, especially its effect on the Southern Resident Orca Whales . The Court stated: “The unjustified exclusion of project-related marine shipping from the definition of the project rendered the board’s report impermissibly flawed”. The National Observer has summarized the decision thoroughly here , and maintains an ongoing series on “Kinder Morgan” here . CBC News produced several stories, including a broad overview, including reactions, in “After Federal Court quashes Trans Mountain, Rachel Notley pulls out of national climate plan” . A straightforward, briefer summary appeared in the Calgary Herald, “Five things to know about today’s Trans Mountain Pipeline Court Ruling” .
Reaction from environmentalists and First Nations is understandably overjoyed. EcoJustice, one of the main legal players in this consolidated case issued a press release jointly with the Raincoast Conservation Foundation and Living Oceans Society, emphasizing the conservation aspects of the decision. It states: “The past six years have been a hard-fought battle against a project that has come to symbolize some of the defining issues Canadians face at this moment in time: Navigating the ongoing process of reconciliation, mitigating climate change, and protecting the land and water for future generations.” Climate Action Network states that “This decision from the Federal Court of Appeal affirms the primacy of Indigenous rights and community consent. “ The David Suzuki Foundation press release touches on both aspects of the decision, saying “What is clear is that today’s decision sets a new high-water mark in terms of what it means to achieve true reconciliation, with Indigenous Peoples and nature.” From The Narwhal, “The death of Trans Mountain pipeline signals future of Indigenous rights: Chiefs” is a good compilation of First Nations response, to be read along with the Vancouver Sun‘s “B.C. First Nations Divided on Kinder Morgan Ruling”.
Another environmentalist reaction: “‘This pipeline is dead’: Stand.earth applauds federal court decision on Trans Mountain Pipeline” which states: “Today’s victory is a vindication for everyone who worked to stop the Trans Mountain pipeline and tanker project — the hundreds of Water Protectors who were arrested in acts of peaceful civil disobedience, the tens of thousands of climate activists who marched against this pipeline, and the millions of Canadians who used their votes to elect candidates committed to creating a better future for Canada and the world.”
What does this mean for Canadian climate policy? Professor David Tindall of University of British Columbia wrote an Opinion piece which appeared in The Conversation on August 30, “Trans Mountain ruling: Victory for environmentalists, but a setback for action on climate change”. He states: “While environmentalists can claim a victory in delaying the construction of a pipeline that would ship a further 500,000 barrels of oil each day to the Pacific Coast, the court ruling also threatens Canada’s plan to deal adequately with its greenhouse gas emissions. ” A fuller discussion of this dilemma appears in “Trans Mountain pipeline ruling shakes central pillar of Trudeau agenda” (Aug. 31) in the National Observer, and features in the many arguments for “Why Ottawa should step away from the Trans Mountain pipeline” , in Policy Options in August. (A follow-up to an August 29 Open Letter to Prime Minister Trudeau on the topic, from 189 Canadian academics). Finally, “The Global Rightward Shift on Climate Change” in The Atlantic (Aug. 28) examines Trudeau’s contradictory policies even before the Court decision, in light of the recent ouster of Australia’s Prime Minister, partly over energy policies.
The threat to federal climate change policy comes because Alberta’s Premier Rachel Notley, in reaction to the Court’s decision, pulled the province out of the Pan Canadian Framework on Clean Growth and Climate Change, blaming the federal government for “the mess we find ourselves in”. The Premier’s press release issues an ultimatum, stating: “…Alberta, and indeed Canada, can’t transition to a lower carbon economy, …if we can’t provide the jobs and prosperity that comes from getting fair value for our resources….So the time for Canadian niceties is over… First, the federal government must immediately launch an appeal to the Supreme Court of Canada. Even more importantly, Ottawa must immediately recall an emergency session of Parliament to assert its authority and fix the NEB process as it relates to this project to make it clear that marine matters have been and will be dealt in a different forum. Then Ottawa needs to roll up its sleeves and continue its work to protect our coast and improve consultation and accommodation relating to Indigenous peoples in the way they deserve.”
The political context is behind Notley’s response is reported in “‘Notley’s in a lot of trouble’: Massive political fallout from Trans Mountain court decision” in the Calgary Herald and in the Edmonton Journal (Aug. 31) : “’It is a crisis’: Alberta premier withdraws support for federal climate plan after Trans Mountain approval quashed” . Other Western politicians are quoted in “ ‘A hideously expensive white elephant’: Essential quotes on the quashing of the Trans Mountain pipeline approval” in the Calgary Herald. Reaction from British Columbia’s Premier was brief, and focused on First Nations rights; the mayors of Burnaby and Vancouver B.C. were more enthusiastic (having been part of the applicant group of the case) .
What’s Next? The Prime Minister reiterated federal resolve to build the pipeline in an interview on August 31, after the decision. Construction has been stopped indefinitely, but a CBC analysis cautions, “Don’t dig Trans Mountain’s grave just yet” , and UBC Professor George Hoberg has predicted that it will take another 18 months at least for the issue to reach, and be decided, in the Supreme Court of Canada. And in the meantime, in Canada, the September 8 RISE Global Day of Climate Action will be a day of celebration .