Does A Federal 'Re-Do' Trigger A Provincial 'Re-Do'? Recent BC Court Of Appeal Decisions On Trans Mountain

Federal and provincial approvals of the Trans Mountain Expansion Project (the "Project") have elicited many judicial challenges. Notably, in Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153 ("Tsleil-Waututh"), the Federal Court of Appeal quashed the Project's federal approval, holding that Canada had failed to adequately consult with Indigenous groups and that the National Energy Board insufficiently considered the effects of marine shipping.1

Recently, in Squamish Nation v. British Columbia (Environment), 2019 BCCA 321 ("Squamish") and the companion appeal Vancouver (City) v. British Columbia (Environment), 2019 BCCA 322 ("Vancouver"), the BC Court of Appeal considered what effect the Tsleil-Waututh decision has on the provincial approval of the Project.

The arguments and issues

The Squamish Nation and the City of Vancouver argued that because BC's approval was based upon the deficient National Energy Board report and process, the foundation for the...