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 provincial approval disappeared. In essence, they argued that because a federal re-do was required, a provincial re-do was also required.

In response, BC and Trans Mountain argued that the issues referred back to the National Energy Board, as a result of Tsleil-Waututh, were narrow and were solely relevant for the federal approval. Accordingly, the provincial approval should be left in place.

The Court summarized the key issue as:

[61] The practical problem in this case is that the “assessment” relied upon by the Ministers, being the original report issued by the National Energy Board, has turned out not to be Canada’s entire assessment on the Project. Instead, as a result of Tsleil-Waututh, which referred the original report back for reconsideration, the National Energy Board assessment is now the reconsideration report – a report that neither the Executive Director nor the Ministers, through no fault of their own, had an opportunity to consider.[2]

The Squamish Nation also claimed that as a result, the consultation undertaken by the Province was inadequate.

The City of Vancouver further challenged the Provincial approval process, arguing that BC had violated the Environmental Assessment Act. The City also alleged the process was procedurally unfair, as the Ministers did not provide a public comment period before undertaking additional assessment of the Project.

The Court’s conclusions

In Squamish, the Court held that BC’s consultation with the Squamish Nation was reasonable and met legal requirements, stating that the Province can properly limit consultation to matters within its jurisdiction without diminishing the depth of consultation it engages in. Further, Canada’s failure to properly consult did not automatically render BC’s consultation inadequate. BC engaged in additional consultation outside the National Energy Board process, which lead to 37 additional conditions being imposed on the Project.

In Vancouver, the Court upheld the Provincial approval process and the Province’s reliance on the National Energy Board report. The Court found that BC had followed the Environmental Assessment Act and the Equivalency Agreement (between the Environmental Assessment Office and the National Energy Board), which authorized the approval process. The City’s complaints about procedural fairness were equally dismissed as they were raised too late in the process (one year later).

While the Court held that Tsleil-Waututh had shifted the ground on which the Province approved of the Project, the Court refused to quash the Provincial approval. Instead, the Court sent the matter back to the Provincial Ministers to reconsider the Environmental Assessment Certificate conditions in light of the new National Energy Board reconsideration report. The Court acknowledged that this should not affect whether the Trans Mountain Pipeline expansion is built, but simply applies to operational matters.