October 1, 2019

Flawed Federal Report means BC must reconsider certificate conditions for TransMountain: Squamish Nation v. British Columbia (Environment), 2019 BCCA 321


by Savannah Carr-Wilson

In September 2019, the BC Court of Appeal directed the Province to reconsider its environmental assessment certificate conditions for the Trans Mountain Expansion Project (“Trans Mountain”), after the Federal Court of Appeal’s decision in Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153 (“Tsleil-Waututh”) led to changes to the National Energy Board report underlying BC’s approval: Squamish Nation v. British Columbia (Environment), 2019 BCCA 321 (“Squamish”).

The Court’s decision in Squamish’s companion appeal, Vancouver (City) v British Columbia (Environment), 2019 BCCA 322, reached the same result.

The context: BC issues its EA approval based on a flawed Federal EA 

In 2010, BC’s Environmental Assessment Office entered into an equivalency agreement with the National Energy Board (“NEB”), agreeing to accept the NEB’s assessments for certain projects as equivalent to BC environmental assessments [49]. The BC Ministers of Environment and Natural Gas Development (the “Ministers”) then relied on the NEB’s environmental assessment and resultant report to grant the Province’s environmental assessment certificate for Trans Mountain (the “provincial Certificate”) – with 37 additional conditions – in January 2017 [50-52].

Then, in August 2018, the Federal Court of Appeal released its decision in Tsleil-Waututh, quashing the federal approval for Trans Mountain. The Court found that the NEB’s report was critically flawed because the NEB failed to include marine shipping in the project scope, and found that Canada had failed to adequately consult with the Indigenous applicants following the NEB’s hearing process [29, 35].

In September 2018, the federal government ordered the NEB to reconsider its recommendations, terms, and conditions, taking into account the environmental effects of project-related marine shipping, and the adverse effects of such shipping on species at risk such as the Northeast Pacific southern resident killer whale population [37]. Following further process, the NEB issued a Reconsideration Report in February 2019, recommending project approval [38-39]. The Reconsideration Report contained a number of differences from the original report, including amendments to 6 of the 157 original project conditions, and 16 additional non-binding recommendations [40]. The federal government then approved Trans Mountain again, based on this Reconsideration Report [43].

The issues: impact of Tsleil-Waututh on provincial Certificate & adequacy of consultation

In Squamish, the Court considered the impact of Tsleil-Waututh, and the resultant Reconsideration Report, on the provincial Certificate.

The Squamish Nation argued that given Tsleil-Waututh, the Province could not rely on the fatally flawed original NEB report as a foundation for the provincial Certificate [54-55]. BC and Trans Mountain argued that the original NEB report could still provide the foundation for the provincial Certificate, as the original report covered aspects of Trans Mountain within provincial jurisdiction, and Tsleil-Waututh only referred issues relevant to federal approval back to the NEB [58, 62].

The Court summarized the issue as follows:

“[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… The reality is that what is now Canada’s assessment – the reconsideration report… did not form the basis of British Columbia’s Environmental Assessment Certificate.”

Squamish Nation also argued that the Province failed to fulfill its duty to consult and accommodate with respect to the provincial Certificate [70].

The Court’s decision: BC to reconsider provincial Certificate conditions

With respect to the duty to consult, the Court held that BC met its duty to consult and accommodate Squamish Nation [97]. It was acceptable for the Province to limit consultation to matters within its jurisdiction, and this did not diminish the depth of consultation [79]. The fact that the federal government’s consultation process was inadequate to satisfy Canada’s duty to consult did not fatally undermine BC’s consultation, as BC had actively engaged in additional consultation [89-90].

However, the Court also found that “…Tsleil-Waututh has had the effect of shifting the ground on which the Province’s Environmental Assessment Certificate, with its conditions, was issued” [98]. While the Court refused to quash the provincial Certificate, the Court did send the matter back to the Ministers, for them to reconsider and adjust the Certificate conditions in light of the changes to the NEB report following Tsleil-Waututh [100-101].

Savannah Carr-Wilson