The Tsleil-Waututh Nation (TWN) is taking the Trans Mountain Expansion Project (TMX) to the Supreme Court of Canada. TWN is seeking leave to appeal the Federal Court of Appeal’s September 4th decision, which granted leave to six First Nations, but significantly limited the grounds that the First Nations, including Tsleil-Waututh, could argue.
“We are taking this issue to the Supreme Court of Canada not only to stand up for our inherent and constitutionally protected rights, but also to make sure that Canada follows their own laws when making decisions,” said Tsleil-Waututh Chief Leah Sisi-ya-ama George-Wilson.
The appeal argues that the Federal Court of Appeal (FCA) made a legal error by raising the legal test applicable to leave decisions, and thereby excluding grounds that were not about Indigenous consultation from the FCA case. The case TWN advanced has important implications on the relationship between the government and the courts in a constitutional democracy, and will impact decisions beyond First Nations upholding their Aboriginal rights.
The grounds the FCA excluded from the court case include:
Canada’s failure to consider marine shipping throughout Canada’s Exclusive Economic Zone in the environmental assessment and final decision on TMX;
Failing to comply with the Canadian Environmental Assessment Act and Species at Risk Act in relation to the Southern Resident Killer Whales;
Relying on stale economic evidence and ignoring fresh evidence that the project is uneconomic; and
Failing to consider TWN Aboriginal title and rights by refusing to justify infringement of rights or obtaining consent.
TWN continues to participate in the ongoing case at the FCA, but this new appeal could impact the scope of that case. If successful, it could once again quash the federal approval.
“We are confident in our case at the FCA – the federal government failed to meaningfully consult Tsleil-Waututh again by aiming for the legal minimum and missing the mark. This appeal is about making sure that the government follows their own constitution and statutes when making decisions that impact us all.” concluded Chief George-Wilson.