Federal lawyers defend Trans Mountain consultation with Indigenous groups

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Lawyers for the Canadian government have defended its consultation with Indigenous groups for the proposed Trans Mountain expansion project, citing scores of meetings and specific steps designed to address First Nations’ concerns, including a program to study the impact of shipping noise on killer whales.

In opening arguments for the federal government, lawyer Jan Brongers said a key element of Canada’s revised approach to consultations was to “build a process that did not amount to just listening” but allowed Crown decision makers to respond to information they received.

“Much of the criticism [from First Nations] has been about the lack of time," Mr. Brongers told a three-judge panel at the Federal Court of Appeal in Vancouver on Tuesday.

“The real question shouldn’t be, how much time [was provided], but was there meaningful dialogue,” Mr. Brongers said.

Canada maintains that meaningful dialogue has taken place and that four applications to quash the project’s approval should be dismissed.

The current court hearing relates to a second round of consultations with Indigenous groups that would be affected by the Trans Mountain expansion. The project would triple capacity of an existing pipeline that carries oil and refined products from near Edmonton to an export terminal near Vancouver. Ottawa bought the existing pipeline and other assets for $4.4-billion last year amid fears that the former proponent was preparing to walk away from the project because of continuing legal challenges.

Ottawa first approved the Trans Mountain expansion in 2016.

Last year, the Federal Court of Appeal quashed that approval, citing inadequate consultation with First Nations and a process that didn’t consider the potential impact on killer whales.

Ottawa then launched a second round of consultations, appointing former Supreme Court justice Frank Iacobucci to oversee the process.

Liberal Prime Minister Justin Trudeau reapproved the Trans Mountain expansion in June, 2019.

Several environmental groups and First Nations filed legal challenges to that approval. Some were dismissed and others allowed to proceed.

The First Nations involved in the current court hearing say the second round of consultations was no better than the first because it didn’t address specific concerns, including potential impacts of the expansion on an aquifer that provides drinking water to the Coldwater Indian Band.

Four groups are involved in the current challenge: the Squamish and Tsleil-Waututh nations from the Lower Mainland; a collective of Sto:lo bands from the Fraser Valley; and the Coldwater Indian Band, based near Merritt, B.C.

On Monday, a lawyer representing the Tsleil-Waututh said Ottawa suppressed and altered some information, including what he called “peer reviews” of expert reports on issues including the risk of oil spills.

On Tuesday, a lawyer for the federal government called those allegations “baseless,” saying the reports in question were internal notes, that the government voluntarily shared them although it was not legally required to do so and that any changes to those reports were minor and part of a normal process.

“These were summary reviews, they were not peer reviews at all,” lawyer Dayna Anderson told the court.

Ms. Anderson also told the court that Tsleil-Waututh hindered the consultation process by raising issues that were unrelated to potential project impacts and making unfounded allegations of wrongdoing against federal officials.

“Every path that Canada walked with [Tsleil-Waututh] led to the same place – either project rejection or project reconsideration,” Ms. Anderson said.

The hearing continues Wednesday. The governments of Alberta and Saskatchewan, which support the pipeline expansion, have joined the case as intervenors.