Lawyers for the Canadian government say it conducted a new round of consultations with Indigenous groups about the Trans Mountain pipeline expansion that was reasonable, adequate and fair.
Jan Brongers began arguments on behalf of the federal government Tuesday, asking the Federal Court of Appeal to toss out legal challenges to the government’s approval of the project for the second time.
The court has heard from four Indigenous groups in British Columbia that say the government once again failed in its duty to hold meaningful dialogue about the project during consultations conducted between August 2018 and June 2019.
“The shortcomings of the earlier process were not repeated and therefore these four applications should be dismissed,” Brongers told a three-judge panel in Vancouver.
The federal government launched the new round of discussions after the same court cited inadequate consultation with Indigenous groups in its decision to quash the federal government’s initial approval of the Trans Mountain pipeline expansion in August last year.
Brongers told the court that the government deliberately set up a system for addressing the specific concerns of those Indigenous groups, and then went beyond it by opening the consultation to all 129 groups that have been identified as being affected by the project.
He said the government’s response included a review of broad concerns, but also covered specific fears about the impact on the Salish Sea and increased vessel noise on individual communities. They went beyond just listening to and recording the concerns of affected Indigenous communities, Brongers told the court.
The Crown has also proven it was prepared to alter its proposed actions based on insight obtained through those consultations, he said.
Significantly, when the government issued its second approval of the project, six of the National Energy Board’s 156 recommended conditions had been amended to address particular Indigenous concerns, he noted.
“It marked the first time the governor in council has ever exercised its power to exercise its own conditions on a pipeline in order to accommodate Indigenous Peoples.”
Prime Minister Justin Trudeau’s government has twice approved a plan to triple the capacity of the pipeline from Alberta’s oilsands to a shipping terminal in Metro Vancouver.
A three-day hearing is underway to consider challenges launched by the Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band and a coalition of small First Nations in the Fraser Valley.
Several First Nations, environmental groups and the City of Vancouver had originally filed challenges making a range of arguments including that the project threatened southern resident killer whales.
The court only allowed six First Nations to proceed and called for an expedited hearing focused on the government’s latest 10-month consultation.
Two First Nations have since dropped out of the appeal after signing deals with Trans Mountain Corp., the Crown corporation that operates the pipeline and is building the expansion.
The governments of Alberta and Saskatchewan, which support the pipeline expansion, have joined the case as interveners.
The Tsleil-Waututh and environmental groups filed leave to appeal to the Supreme Court of Canada, arguing that a broader hearing was necessary, but the high court has not yet issued a decision.
On Tuesday, Crown lawyer Dayna Anderson disputed allegations lodged by the Tsleil-Waututh that the federal government suppressed and significantly altered scientific information requested by the First Nation.
A lawyer for the Tsleil-Waututh had argued the government withheld its peer review of three expert reports prepared for the nation until after the consultation period closed, and included an unjustified note that it was not necessary to the government’s decision on the project.
Anderson said the report in question wasn’t a peer review at all, but a summary report intended to inform Canada’s consultation team so that educated discussions could take place.
The government provided the First Nation with the internal review, even though it had no obligation to do so, and made the author available to the First Nation in a meeting, she said.
“In no way did Canada attempt to suppress or alter scientific information. To the contrary, Canada has been extremely transparent,” she said.
The First Nation also argued that Canada has proven itself unwilling to depart from the National Energy Board’s findings about the project because its decision about the project did not reflect the First Nation’s specific concerns, but Anderson said that’s not the case.
“In fact, Canada was open to a departure if it was warranted by the evidence. This evidence simply wasn’t as convincing as they wanted it to be,” she said.