Ecojustice Blog – Nature Posted on October 4, 2018 (updated: October 5, 2018)

What happens next: The Trans Mountain legal saga is over, but the fight continues

Devon PageLawyer
Trans Mountain rally
Photo by Emily Chan

The Trans Mountain legal saga is over.

The Canadian government announced on Wednesday that it will not appeal a landmark Federal Court of Appeal ruling that quashed approval for the project.

This marks the end of a lengthy and arduous legal fight against the controversial expansion — but our commitment to protecting endangered Southern Resident killer whales, to avoiding climate catastrophe and to ensuring that we don’t see repeats of the same mistakes that led to this court case, continues.

The Trans Mountain decision: a landmark ruling

The decision, issued Aug. 30, set an important precedent.

The court found the government failed to properly consult First Nations on the Trans Mountain project. It also found the government’s approval of the project violated its responsibility to protect endangered Southern Resident killer whales, siding with Ecojustice clients Raincoast Conservation Foundation and Living Oceans Society.

Only 74 Southern Residents remain. They form a genetically and socially distinct population that lives off the coast of British Columbia and Washington State and feeds almost exclusively on Chinook salmon.

Unfortunately, Southern Residents struggle to hunt and communicate when vessels are around, both because of the boats’ physical presence and because of the underwater noise they cause.

If built, the Trans Mountain pipeline expansion would increase tanker traffic through critical Southern Resident habitat sevenfold, to a total of 408 tankers per year. The increased risk of an oil spill also threatens the whales’ survival.

According to our client’s uncontroverted evidence, the Trans Mountain project would lead to a greater than 50 per cent chance that the population would effectively go extinct within this century.

The National Energy Board (NEB) itself acknowledged these risks when first assessing the project but failed to include recommendations to mitigate shipping effects on Southern Residents or other marine species.

This was a critical error, and led to the court’s decision to quash the approval of the project; an important win for the climate, communities, and the coast.

New NEB review sparks concern

On Sept. 21, the government ordered the NEB to launch a new review of the project’s marine shipping impacts.

This move was a direct result of our legal victory, but we remain concerned that it will not meaningfully address threats to the Southern Residents. The NEB is legally required to assess and mitigate the project’s marine shipping impacts, but it is unclear how it can conduct a thorough review in a short, 155-day time period.

Then, on Oct. 3, the government made a follow up announcement: it will launch a new Indigenous consultation process and will not pursue an appeal.

Bill C-69 – a chance to avoid the same mistakes?

We welcome the government’s decision not to appeal. However, this fight is not over.

Looking ahead, we will continue to represent our clients in the new NEB hearing and push the government to use the tools at its disposal to protect endangered Southern Resident killer whales from current and future threats.

We are also working to ensure more rigorous reviews for major energy projects like the Trans Mountain project.

The Federal Court of Appeal’s decision made it clear: Canada cannot follow the same old processes if it also want to meaningfully consult with Indigenous peoples and protect species and the environment. That’s why we are urging the senate to pass Bill C-69, which replaces the Canadian Environmental Assessment Act, 2012 and the National Energy Board Act with the Impact Assessment Act and the Canadian Energy Regulator Act.

Unfortunately, in light of the court’s Trans Mountain decision, some voices from the oil and gas industry are falsely painting the bill as a tool to slow down or halt project approvals. In fact, the new law will reduce the chances that project reviews end in litigation.

Bill C-69 is designed to address potential problems earlier, increase accountability, and improve the process for all participants.

For example, a new pre-planning phase will require proponents to work with stakeholders and government sooner. In the case of Trans Mountain, this phase might have been an early opportunity to identify threats to the Southern Residents and ensure the assessment fulfilled its legal obligations to them, saving us a long court fight.

Combined with the precedent set by the court’s Trans Mountain ruling, Bill C-69 could reduce the risk of repeating the same unlawful errors we saw during this project’s approval process — as long as the government properly implements the law.

And if that doesn’t happen, we will be ready to use the legal tools at our disposal to hold them the government account, and continue to fight for a brighter environmental future.

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