A Steady Judicial Tune Resonates Uncertainty: Federal Court Of Appeal Orders Canada To Re-Consult On Trans Mountain Pipeline Expansion Project Approvals

Canada once again faces uncertainty in relation to the Trans Mountain pipeline expansion project (TMX), which itself is a harbinger of the continued unpredictability surrounding the state of Canada's regulatory landscape for major energy infrastructure projects as a whole. This latest installment in uncertainty arises due to the recent Federal Court of Appeal (FCA) decision, Tsleil-Waututh Nation v. Canada (Attorney General), released on August 30, 2018, where the Court found that the National Energy Board (NEB) failed in its duty to consider the impact on marine life from marine shipping associated with TMX, and that the Crown failed to properly consult with Indigenous groups. The Court quashed the Order in Council (OIC) issued by the Federal Cabinet (GIC) rendering the Certificate of Public Convenience and Necessity (CPCN) issued by the NEB for TMX a nullity.

On the same day, and shortly after the release of the decision, shareholders of Kinder Morgan overwhelmingly voted to approve the sale of TMX to the Government of Canada. While the sale from TMX to Canada remains unaffected by the decision, the Government of Canada's ability to re-sell the pipeline to a third party is subject to further uncertainty as a result of the delay and potential changes to conditions on TMX which may be occasioned by further consultations.

Court challenges to NEB project approvals are not novel.1 In 2016, in Gitxaala Nation v Canada - a decision also written by Dawson JA - the FCA made a similar finding, quashing the OIC issued by the GIC and thereby rendering the CPCN for the Northern Gateway Pipeline a nullity. The ultimate result being that the Northern Gateway Pipeline did not proceed. Only time will tell whether a similar fate awaits TMX.

Case Summary

The judicial review in Tsleil-Waututh focused primarily on two sets of alleged deficiencies in the decision of the GIC relating to TMX. The first dealt with administrative and regulatory issues, while the second dealt with the Crown's duty to consult Indigenous peoples. The review was brought by six Indigenous groups2 , the cities of Vancouver and Burnaby and by two non-governmental organizations3(collectively, the "Parties"). Together, they challenged the OIC and decision of the GIC and its ability to rely on the May 2016 NEB report which recommended that the GIC approve the construction and operation of TMX.

Administrative and Regulatory Issues

In the review, the Parties alleged that the following issues rendered the NEB report so deficient the GIC could not rely on it to make its decision ordering approval of TMX:

the NEB process breached the requirements of procedural fairness; the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT