The Bigstone ruling and what it means for Trans Mountain

By Yves Faguy June 12, 201812 June 2018

The Bigstone ruling and what it means for Trans Mountain


The Trans Mountain project has understandably consumed most of the coverage of pipeline politics of late (The Canada Pension Plan Investment Board the latest to get drawn in).  As the story turns to the legal challenges brought against it by Indigenous groups, David. V Wright takes note of the recent Federal Court of Appeal decision in Bigstone Cree Nation v. Nova Gas Transmission Ltd., which he believes is instructive for how it will ultimately decide in the TMX case. In its decision the court upheld regulatory and political approvals to expand Trans Canada’s Nova Gas Transmission Ltd. System in northern Alberta.  Wright sees “an emerging consensus” in the wake of recent Supreme Court of Canada rulings in Clyde River and Chippewas of the Thames First Nation. The Crown, it seems, can “rely on an existing regulatory process like that of the NEB for undertaking consultation, and that Indigenous groups have a responsibility to make use of such processes if they wish to voice their concerns,” he writes.

Noting that after its election in 2015, the current government “created additional time and space” for deeper consultations, Wright concludes that the government is carefully following the playbook outlined in the Federal Court of Appeal’s Gitxaala Nation decision in 2016.  That ruling made headlines for quashing Canada’s approval of the Northern Gateway Pipeline Project, because of the government’s failure to adequately consult with affected First Nations:

The legal question on the consultation and accommodation aspect of TMX is whether the Crown fulfilled its obligations in a manner consistent with the honour of the Crown. This is substantively the same as Bigstone and Gitxaala. In light of Bigstone, the pragmatic question seems to simply be whether the federal government followed the Gitxaala playbook closely enough. They did so in Bigstone and the OIC and certificate stood up. I hesitate to shift into predictive mode (which comes with the risk of an eventual meal of crow), but it’s plain to see substantial similarities between Crown consultation in Bigstone and TMX that may lead the FCA to conclude that the federal government did indeed do the “right” plays in TMX.

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