Vancouver Sun – Gordon Hoekstra
Court challenges by First Nations of Kinder Morgan’s $6.8-billion Trans Mountain pipeline could slow the expansion down but are not likely to scuttle the project, say legal experts.
There are already seven challenges of the National Energy Board (NEB) approval of the project at the Federal Court of Appeal – four from First Nations.
More are expected now that Prime Minister Justin Trudeau’s government has given its approval Tuesday.
First Nations’ challenges are considered to hold more heft than those from Burnaby, Vancouver and environmental groups because aboriginal rights are entrenched in Canada’s constitution and mounting court cases have increased Canada’s need to consult and accommodate First Nations.
“It could slow things down – that’s really the extent of it,” said University of B.C. law professor Gordon Christie of the First Nation legal challenges. “The kinds of arguments they are making, they don’t have, at this point, what counts as a veto,” he said.
And even if the courts were to rule in First Nations’ favour that they were not adequately consulted, it does not mean the government and company could not pay a penalty later with compensation for First Nations, said Christie.
There are First Nation court challenges of B.C. Hydro’s $8.3-billion Site C project, and that project continues to move forward, noted Christie.
Robin Junger, a lawyer and co-chair of McMillian LLP’s aboriginal and environmental practice in Vancouver, said litigation does not suspend the decision on Kinder Morgan’s pipeline project, from the NEB or the federal government.
“The law is that they are entitled to move forward despite the court cases being filed,” said Junger, who has acted on behalf of companies and First Nations.
“And in order for anyone to change that law, they would have to make a special application for an injunction against the decision. And that’s a high threshold to meet.”
University of Saskatchewan law professor Dwight Newman said he couldn’t rule out First Nation legal action stopping the project, or the possibility of a successful injunction, but it was unlikely.
And if the courts ruled that there had not been adequate consultation, the most likely remedy would be for that consultation to take place, he said.
That consultation could lead to accommodation that gradually made the project “undoable,” but that’s an unknown at this time, said Newman.
He said there was nothing stopping the company from moving forward, although they did take on some risk while legal challenges were outstanding.
Among the First Nations who have launched legal challenges against the NEB approval for inadequate consultations are the Tsleil-Waututh and Squamish First Nations along Burrard Inlet, and the Kwantlen in the Fraser Valley and Coldwater First Nation in the Interior.
On Tuesday, Squamish chief Ian Campbell said the community was assessing its legal and other options.
“The Prime Minister’s decision amounts to a betrayal of our aboriginal rights and title — as well as all that lofty federal rhetoric about a nation-to-nation relationship. Just another broken promise made to the indigenous peoples of this country,” said Campbell.
In a news conference with reporters on Wednesday, Kinder Morgan Canada president Ian Anderson said they will take any new legal challenges as they come, but it would not stop the company from moving forward.
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