Supreme Court will not hear Trans Mountain pipeline expansion appeal cases

OTTAWA – The Trans Mountain pipeline expansion project has cleared another legal hurdle.

The Supreme Court of Canada has decided not to hear five challenges from environment and Indigenous groups from British Columbia.

Some had wanted the top court to consider whether the Liberal cabinet violated the Species at Risk Act when it decided to approve the pipeline expansion a second time in June 2019, arguing the project would harm the highly endangered southern resident killer whales.

The Federal Court of Appeal had overturned cabinet's first approval of the pipeline in 2018, citing insufficient consultation with Indigenous Peoples and a failure to take the impacts on marine animals into account.

After another round of Indigenous consultations and a second look at marine impacts, cabinet gave a second green light, but the same Indigenous communities and environment groups that successfully challenged the approval in 2018, filed new appeals of the approval in 2019.

The Federal Court of Appeal heard — dismissed last month — appeals from Indigenous communities about whether there had been enough consultation, but had declined to hear arguments from the environment groups.

B.C. Nature, the Raincoast Conservation Foundation, the Tsleil-Waututh First Nation, the Squamish First Nation and a group of four young people then asked the highest court to do it instead. These are the cases the Supreme Court chose not to hear.

As usual, the Supreme Court did not give any reasons for its decision released Thursday.

Misty MacDuffee, a conservation biologist and program director with Raincoast Conservation Foundation, said the legislation aimed at protecting at-risk species requires governments to ensure endangered populations are protected.

There are fewer than 75 southern resident killer whales left and MacDuffee said they would be harmed by the noise from the expected increase in oil tankers carrying diluted bitumen due to the expanded pipeline.

MacDuffee said there is currently no technology in existence that can reduce the impacts that noise from the boats would have on the whales, which means forging ahead with the pipeline is inconsistent with upholding the legislation.

"The effects have to be mitigated for the project to proceed and none of that has happened in Trans Mountain," MacDuffee said earlier this year.

This report by The Canadian Press was first published March 5, 2020.