A lawyer for Trans Mountain Corp. is defending the government’s consultation with Indigenous groups over the Crown corporation’s operation and construction of its pipeline project.
Maureen Killoran said Wednesday that the $10 billion project has twice been declared in the national interest by a government that weighed various priorities, perspectives and interests, and the Federal Court of Appeal is tasked with striking the same balance.
The court is hearing arguments about whether a new round of consultations with Indigenous groups on the project was adequate after the same court quashed the government’s initial approval of the pipeline in August 2018.
Killoran told a three-judge panel that the latest round of consultations builds on more than six years of work by Trans Mountain to engage with Indigenous groups and other affected communities, and that will continue through the project life cycle.
She said arguments should be dismissed by the four Indigenous groups who allege the government failed again to meaningfully engage them before approving the project for the second time.
Killoran said the same groups failed to engage with Trans Mountain in good faith or at all and are relitigating issues that were raised in the original case or have taken positions that are effectively a veto against the project.
“We say that such defences serve as a complete bar to the applicants in this case,” Killoran said.
The three-day hearing 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 were expected to conclude Wednesday.
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.
Several First Nations, environmental groups and the City of Vancouver had originally filed challenges making a range of arguments including that the project threatens southern resident killer whales.
The court allowed six First Nations to proceed with an expedited hearing focused on the federal government’s consultation with Indigenous communities between August 2018 and June 2019.
Two First Nations have since dropped out of the appeal after signing deals with Trans Mountain Corp.
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.
The governments of Alberta and Saskatchewan, which support the pipeline expansion, have joined the case as interveners.
Killoran alleged Trans Mountain was excluded from meetings with the Tsleil-Waututh and Squamish nations, and Squamish did not respond to any correspondence from Trans Mountain.
She also argued that the nations are attempting to revisit issues that have already been dealt with, despite direction from the court that the new round of consultations should be specific and focused on filling gaps related to project impacts on Indigenous rights.
Scientific reports that have been taken into evidence by the National Energy Board should not be the subject of new arguments, she said.
“Where the [energy board] considers conflicting evidence and reaches a determination, this is not a gap on which the Crown needs to permit the applicants a second kick at the can,” she said.
In contrast, she agreed that Coldwater has appropriately identified the lack of a feasibility study on an alternate route for the pipeline as a real gap in earlier rounds of consultations.
The existing pipeline runs through the Coldwater reserve and the First Nation has expressed concerns about impacts to the aquifer that supplies its drinking water.
However, she accused Coldwater’s leadership too of avoiding contact with Trans Mountain and of delaying the initiation of drilling required to begin a requested study of potential impacts on the aquifer.
When asked by one of the judges if she thinks a failure to engage with Trans Mountain constitutes a failure to engage with the Crown, Killoran responded that it is.
“A failure to engage the proponent and take advantage of those opportunities is absolutely a failure to engage,” she said.