First Nation alleges Ottawa withheld info during Trans Mountain consultation

VANCOUVER—A lawyer for a British Columbia First Nation is accusing the federal government of withholding key information about oil spills until after the latest consultation on the Trans Mountain pipeline was over.

Scott Smith, who represents the Tsleil-Waututh, told the Federal Court of Appeal in Vancouver today that the First Nation prepared three expert reports on the risks of oil spills and other environmental concerns surrounding the pipeline expansion.

Smith says a federal peer review of the reports effectively agreed with their findings that there is a lack of information about the effects and behaviour of diluted bitumen, but it wasn’t shared with the First Nation until after consultation closed.

He also alleges the peer review was “substantially altered” before it was distributed with a note saying a report on diluted bitumen was not necessary to cabinet’s vote on the pipeline, effectively neutering the scientists’ conclusions.

The Tsleil-Waututh are among four B.C. Indigenous groups arguing in the court this week that the Canadian government came into the new round of consultations having predetermined the outcome before its latest approval of the Trans Mountain pipeline.

The Federal Court of Appeal tore up the government’s original approval of the pipeline in August 2018, citing inadequate Indigenous consultation as one reason.

Lawyers for the Canadian government are expected to present arguments Tuesday.

“How could meaningful dialogue occur when Canada withheld key information that was central to Tsleil-Waututh’s concerns about oil spills” until after the latest consultation was over, Smith asked the court.

The Canadian government once again conducted a “fundamentally flawed” consultation with a British Columbia First Nation before its latest approval of the pipeline expansion, he said.

“Meaningful dialogue cannot occur where, as here, Canada withheld key documents until after the decision and refused to change its position even when its scientists agreed,” Smith said.

The three-day hearing is scheduled to continue through Wednesday to consider legal challenges launched by the Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band and a coalition of small First Nations in the Fraser Valley.

Several First Nations, environmental groups and the City of Vancouver had originally filed challenges making a range of arguments including that the project threatens southern resident killer whales.

The court only allowed six First Nations to proceed and called for an expedited hearing focused on the federal government’s consultation with Indigenous communities between August 2018 and June 2019.

Two First Nations have since dropped out of the appeal after signing deals with Trans Mountain Corp., the Crown corporation that operates the pipeline and is building the expansion.

The Tsleil-Waututh and environmental groups filed leave to appeal to the Supreme Court of Canada, arguing that a broader hearing was necessary, but the high court has not yet issued a decision.

Prime Minister Justin Trudeau’s government has twice approved a plan to triple the capacity of the pipeline from Alberta’s oilsands to a shipping terminal in Metro Vancouver.

After the Federal Court of Appeal nixed the original approval, the Liberal government ordered the National Energy Board, now known as the Canada Energy Regulator, to conduct a new review focusing on marine impacts, which was completed in February.

The government also appointed retired Supreme Court justice Frank Iacobucci to oversee a new phase of consultation with affected Indigenous communities before it approved the project a second time in June.

The governments of Alberta and Saskatchewan, which support the pipeline expansion, have joined the case as interveners.