BC’s broken pipeline promise: court documents

In October 2017, the Squamish Nation was in court appealing the granting of a BC Environmental Assessment Certificate for the Trans Mountain pipeline expansion. The Squamish Nation argued that the BC Environmental Assessment should be overturned due to insufficient consultation and high environmental risk. Central to that case was the fact that BC’s consultation rested largely on the National Energy Board process that has since been found inadequate and overturned by a federal court.

In the first round of this case, Premier Horgan’s government sided with Trans Mountain against the Squamish Nation, defending in court a pipeline approval he had previously called “the outcome of a flawed process endorsed by Christy Clark”.

Though the Squamish Nation lost the initial case in May 2018, they have appealed the decision. Once again, Premier Horgan’s government is defending the Trans Mountain pipeline in court.

Court filings

These factums contain a brief statement of facts of the case, issues for the appeal, the arguments each party is making, the decision they are asking for from the court, and appendixes of related material.

Squamish Nation

Appellants’ Factum
Appellants’ Reply

Arguments:

A. Standard of review: determine whether the in the original appeal selected and correctly applied the appropriate standard of review
B. The foundation of the environmental assessment certificate has disappeared
C. Misinterpretation of the scope of the Province’s Obligations: The judge erred in finding that the Province fulfilled its duty to consult by relying on the NEB assessment of the Project without considering further assessment and consultation.
D. Province’s Change in position: the honour of the Crown required the Province to discuss its change of position with regard to the Project before approving it.
E. Province’s constitutional limits on the Duty to Consult: The depth of the required consultation is dependent on the strength of Squamish’s claim and the degree of impact on their asserted rights and title, not on the strength of the Province’s jurisdiction.

BC Attorney General

Factum Respondent

Arguments:

A. Scope of review: the scope of the Province’s consultation obligations is a question of mixed fact and law and subject to the reasonableness standard
B. The Scoping Errors in the NEB Report Do Not Undermine the Foundation of the EAC
C. The Provincial Consultation on the EAC remains adequate despite the FCA decision
D. There was no Change in the Province ’s Position when the Ministers issued the EAC

Outcome sought: Dismiss the appeal, without costs

Trans Mountain Pipeline ULC

Factum Respondent

Arguments:

A. The Standard of Review is Reasonableness
B. Limited Provincial Jurisdiction over Interprovincial/International Transport
C. The Environmental Assessment Certificate remains Valid
D. The Province Met Its Duty to Consult

Outcome sought: Dismiss the appeal, with costs; alternately, a limited stay of the EAC only in Squamish Nation territory until provincial consultations are complete.

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