The Supreme Court of Canada has declined to hear a case from the Squamish and Tsleil-Waututh Nations that could have halted the Trans Mountain Pipeline expansion for a second time.
The Coldwater Indian Band, along with the Squamish and Tsleil-Waututh already had the federal approval of the pipeline project overturned once in 2018, after successfully arguing in the Federal Court of Appeal that they were not adequately consulted, as guaranteed by the constitution.
That led the federal government to restart the approval process and include more dialogue with the Indigenous groups before approving the pipeline for a second time, but that too fell short of what was required, the three First Nations argued in their latest court filings.
The decision by the top court, which never gives reasons for why it will not hear some cases, ends the legal challenge.
The three bands issued a release soon after the decision Thursday saying, despite being “extremely disappointed” by the refusal, they will “explore all legal options to protect their rights, land, water and climate.”
“This case is about more than a risky pipeline and tanker project. It is a major setback for reconciliation. It reduces consultation to a purely procedural requirement that will be a serious barrier to reconciliation,” said Tsleil-Waututh Nation Chief Leah George-Wilson in the release. “What I can tell you today is that this is not the end of the story.”
There was a high expectation that the court would hear the case, said Chris Lewis, Squamish Nation council member and spokesman, because it would have provided both the Crown and First Nations with more clarity around their constitutional right to meaningful consultation and accommodation.
“We were shocked to learn that the Supreme Court of Canada didn't see this as an issue of national importance,” he said. “And also that they didn't see that the Federal Court of Appeal’s decision to let the federal government basically be the judge and jury of their own consultation process was flawed.”
The federal government still has a duty to consult First Nations before issuing the regulatory permits for various aspects of the work. Lewis said the nation will continue to push the government to address concerns left lingering after the approval process - things like impacts on southern resident killer whales, underwater noise and cumulative impacts of the pipeline.
“We'll continue to let our voice be heard,” he said.
The Squamish Nation and Tsleil-Waututh Nation will soon be joining with the federal government on a study into the behaviour of diluted bitumen in water, which was a major unanswered question, Lewis added.
Canada’s Natural Resources Minister Seamus O’Regan issued a statement welcoming the decision.
“The government approved TMX because it is an important project for Canada,” the statement read. “Construction of TMX is underway and has already created more than 4,900 good, well-paying jobs, will help us gain access to new markets for our resources, and generate revenue to help fund clean energy and climate change solutions.”
O’Regan’s statement acknowledged the further rift that would come in reconciliation efforts.
“To those who are disappointed with today’s SCC decision — we see you and we hear you,” the statement read. “Canada will continue to engage with Indigenous groups at each step of the project in the months and years to come, and in the spirit of partnership, to make sure we get this right.”
Lewis said he would not be surprised to see the decision and construction on the pipeline inspire protests and civil disobedience. But, he added, the nation’s council will focus on its role in holding the government to a higher standard.
“Squamish will continue to assert our rights and continue to uphold our laws that we need to protect and care for our homelands and our traditional territories because it's our responsibility given to us by our ancestors that we need to pass on a better state of the world to the next generation,” he said.