Lead Indigenous group seeking TMX ownership “still bullish” despite second judicial review of $7.5 billion pipeline expansion

“I’m still very bullish about this going ahead,” said Joe Dion, CEO of the Western Indigenous Pipeline Group, which represents First Nations support he’s shored up along the existing pipeline’s 1150 kilometre right-of-way, from Edmonton to Vancouver.

“The fact (the court) only took the First Nations’ appeal requests and not the environmentalists means they’re listening to First Nations, not the environmentalists…without consent by the First Nations along the pipeline, (the federal government’s) going to have a rocky road.”

Federal appeals court Justice David Stratas’ decision this week grants a second judicial review of the project’s consultation process to six indigenous applicants who say the federal government failed in its “duty to consult” over the $7.5 billion expansion.

Little more than a year ago on August 30, 2018, the federal court quashed the National Energy Board’s original approval to twin the existing bitumen pipeline. That same day, 99 percent of shareholders for Kinder Morgan voted to sell its Trans Mountain interests to Canada.

Three months before that setback, Prime Minister Justin Trudeau announced the government would nationalize the project; the cost: $4.5 billion.

A year later, in June of 2019, Trudeau announced cabinet approval for the pipeline expansion to proceed, the project’s second kick at the can, and put no limit on indigenous ownership.

Though the prime minister expressed confidence in his government’s consultation undertaking with affected First Nations, Wednesday’s Federal Court of Appeal decision would suggest otherwise.

In granting six indigenous litigants a judicial review of this second, federally led round of pipeline consultations, Justice Stratas shut out anti-TMX environmental groups and the City of Vancouver who were consolidated with First Nations under the original Raincoast Conservation Foundation versus Canada filing.

In his decision, Justice Stratas also noted lawyers for the federal government failed to show up and make Ottawa’s case that a judicial review was unnecessary; only lawyers for the Alberta government bothered to present opposing arguments.

The Court’s standing practice is not to issue reasons in disposing of leave applications. However this is an exceptional case as the respondents, who have a direct interest in the project, took no position for or against the leave applications in all cases but one, thereby leaving the matter to the discretion of the Court. Taking no position on a motion is a common practice when dealing with procedural matters; it is not when issues of general importance are in play.

This federal government no-show put Natural Resources Minister Amarjeet Sohi in the hot seat in the wake of the ruling and on CBC’s Power and Politics Sohi was grilled about Ottawa’s decision to stand down in this preliminary hearing.

“We want courts to decide who should have the right to appeal, who should not have the right to appeal at all,” Sohi told the public broadcaster. “That’s a decision that federal court of appeal needed to make and they have made that decision and we respect that.”

In a statement to The Post Millennial, Sohi reiterated that sentiment and appeared buoyed by Justice Stratas’ decision.

“There are six fewer challenges to the project today than there were before yesterday’s decision,” writes Alexandre Deslongchamps, the minister’s director of communications.

“The scope of the appeal is narrowed and reduced to a single question: whether the Crown has fulfilled its duty to consult. We are confident that we have fulfilled this duty. We did the hard work necessary to respond to the August 30th Federal Court of Appeal decision.”

But longtime insider Bill Gallagher, a veteran regulatory lawyer who’s worked for the federal government and now consults for both industry and indigenous groups, told TPM he believes “the project is at risk.”

“(Trudeau)’s taking a hit today, because those native supporters that could make life easier for him are on the sidelines and he’s put them there,” said Gallagher.

“He’s sidelined his native supporters, he doesn’t go to court against his native opponents and now he’s got to duke it out for a third approval at the appellant level in the run-up to the election. It’s just a mishmash, bad strategy.”

“So the message is, if you’re a native group with an ownership plan, come and see us after the election,” he added.

Back in Calgary where Dion heads up the Western Indigenous Pipeline Group, which according to him has nearly 100 First Nations backers to take over the project from the feds, the businessman offered his view of this latest TMX setback.

“Obviously I would’ve liked the Trudeau government to recognize that they should’ve moved alongside us earlier,” he said.

“I guess, you might say they chose to ignore us, but they’re playing politics with the two other groups…but they still have no choice but to side with us eventually, so I’m not really worried about that.”

To date, three indigenous consortiums have made serious overtures for an ownership stake and include the Alberta Iron Coalition and Project Reconciliation, but Dion maintains that Ottawa is must deal first with the Western Indigenous Pipeline Group, as their members are directly affected.

“We were at (Finance Minister Bill) Morneau’s office the day after the announcement (the feds were going to buy TMX) telling them that we were ready to work with them to build this pipeline,” said Dion, whose group wants a 51 percent stake, ideally backed by an established resources or energy transmission player.

“We had a plan, we had a group, we had a name, we were targeting the key groups along the pipeline. That was our objective; to win over those who could stop it.”