The Federal Court of Appeal has overturned a decision by Canada’s National Energy Board to approve the Trans Mountain pipeline expansion.
In a unanimous decision, a panel of three judges said that the National Energy Board wrongly narrowed its review of the project to exclude related tanker traffic. Additionally, the court also ruled that the federal government failed to adequately consult First Nations, as required by law.
The decision states: ‘The board made one critical error. The board unjustifiably defined the scope of the project under review not to include project-related tanker traffic. This unjustified exclusion of marine shipping from the scope of the project led to successive, unacceptable deficiencies in the board’s report and recommendations.
It continued: ‘Canada failed in Phase III to engage, dialogue meaningfully and grapple with the real concerns of the indigenous applicants so as to explore possible accommodation of those concerns.’
On August 31, Kinder Morgan Canada closed the sale of the Trans Mountain Pipeline to the Government of Canada for C$4.5 billion after it shareholders voted to approve the sale.
In a statement finance minister Bill Morneau said that they are reviewing the decision carefully to ‘ensure we are meeting high standards when it comes to both protecting the environment and meeting our obligations to consult with indigenous peoples’.
He said: ‘As we have said since the very beginning, building the Trans Mountain expansion project is in the national interest.
‘That is why our government made the decision earlier this year to purchase the existing Trans Mountain pipeline, and infrastructure related to the Trans Mountain expansion project.
‘We chose to acquire the project because it’s a sound investment, and because as a government we can manage risks that, in these particular circumstances, would have been difficult for any private sector company to bear.
‘And once we get past those risks, as we have said before, we will work towards transferring the project and related assets to a new owner or owners, in a way that ensures the project’s construction and operation will proceed in a manner that protects the public interest.’
The expansion project would nearly triple capacity on an existing line from Edmonton, Alberta, to a port in the Vancouver area for export. It was approved by the federal government in a landmark decision back in 2016.