Six Challenges To Trans Mountain From Indigenous Groups Allowed To Proceed, While Six Others Dismissed

On September 4, 2019 the Federal Court of Appeal agreed to hear six of 12 challenges to the Governor in Council's (GIC, essentially the Federal Cabinet) approval of the Trans Mountain Pipeline, which came on June 18, 2019 (see their decision at 2019 FCA 224).

Contrary to normal practice, the Court issued detailed reasons on the leave application, in part because Canada and Trans Mountain (owned by Canada) took no position on 11 of the 12 applications.

While the Court allowed six challenges to proceed, it dramatically narrowed the issues to arguments relating to the federal government's consultation since the Court overturned the original project approval. In particular, the Court will review the adequacy of consultation in the period between August 30, 2018 and June 18, 2019, the time between the Court's first decision quashing the original approval, and their second approval of the project.

In light of the narrow issue and the "substantial public interest" in having this matter decided quickly, the Court directed the parties to proceed on a "highly expedited schedule".

The issues that will not be able to proceed include:

Conflict of interest and bias

A number of applicants raised issues of conflict of interest and bias based on Canada's acquisition of Trans Mountain. The Court rejected this argument, stating the GIC is not the Government of Canada, and therefore does not own the pipeline. The Court also noted no evidence of bias had been filed by the parties.

Environmental issues and reasonableness of the decision

The Court...