Today the Federal Court of Appeal released its decision on the long awaited Tsleil-Waututh Nation v. Canada (Attorney General) court case. In what should be the final death knell for the project, the Federal Court of appeal ruled that:

1. The Board unjustifiably defined the scope of the project under review not to include project-related tanker traffic. This exclusion permitted the Board to conclude that, notwithstanding its conclusion that the operation of project-related marine vessels is likely to result in significant adverse effects to the Southern resident killer whale, the project was not likely to cause significant adverse environmental effects. The unjustified exclusion of project-related marine shipping from the definition of the project rendered the Board’s report impermissibly flawed: the report did not give the Governor in Council the information and assessments it needed in order to properly assess the public interest, including the project’s environmental effects—matters it was legally obligated to assess.
2. The Government of Canada was required to engage in a considered, meaningful two-way dialogue. However, for the most part, Canada’s representatives limited their mandate to listening to and recording the concerns of the Indigenous applicants and then transmitting those concerns to the decision-makers. On the whole, the record does not disclose responsive, considered and meaningful dialogue coming back from Canada in response to the concerns expressed by the Indigenous applicants. The law requires Canada to do more than receive and record concerns and complaints…The duty to consult was not adequately discharged.

The result is that the soon-to-be-taxpayer-owned project must redo “phase 3” of the consultation process and send the project back to the newly-constituted NEB process for a reassessment of the effects of increases in marine shipping.

As readers might imagine, I am delighted by the decision. My colleague Adam Olsen, MLA for Saanich North and the Islands and I both feel vindicated after many years serving as intervenors in the NEB process. We are grateful to the Tsleil-Waututh, Squamish, Coldwater, Secwepemec and other First Nations, along with the cities of Burnaby and Vancouver, for their efforts to ensure that the appropriate evidence was brought before the Federal Court of Appeal. We should not forget that the resources that could have been put to use in their communities were instead directed to the legal challenge.

The decision today is both a victory for science and evidence-based decision-making (ruling 1. above) as well as a victory for indigenous rights (ruling 2.). As the only sitting MLA to seek intervention status, my focus as an intervenor was almost exclusively on the former, culminating in an Open Letter to Prime Minister Trudeau in November, 2016.

I was very disappointed by the petty response of Rachael Notley to the decision. As I summarized in a tweet earlier tonight:

It’s time to stop playing politics with younger generations’ future. The fed gov needs to show real climate leadership with a plan to meet our targets that doesn’t rely on selling out First Nations’ rights, the coast & the economic activity our communities depend on.

In response to the ruling, my office issues a media release which is reproduced below.

Media Release

Weaver: Federal Court Ruling show politics put ahead of evidence and reconciliation in federal approval of pipeline
For Immediate Release
August 30, 2018

VICTORIA, B.C. – Andrew Weaver, leader of the B.C. Green Party, congratulated the First Nations and local governments on the Federal Court of Appeal’s ruling today that federal government made its decision without considering all evidence and failing in their legal duty to consult First Nations. Weaver, who was an intervener in the National Energy Board hearings, says the ruling is further proof that the project should have never been approved.

“Today’s ruling is a victory for First Nations’ rights and for all those who have long held that this project was not approved based on evidence,” said Weaver.

“I am particularly glad to see the court’s judgement that there was an unjustifiable failure at the heart of the federal government’s approval of this project: the failure to assess the impacts of marine shipping on the environment. This was an outrageous omission on the part of the federal government that flies in the face of their stated commitment to evidence-based decision-making. The NEB acknowledged that the marine traffic from this project posed significant harm to the endangered Southern Resident Killer Whales. The government must now justify to Canadians, and to the world, why it is willing to herald the death knell of this irreplaceable species if it continues to pursue this project.

“Coming off of the two worst wildfire seasons in B.C.’s history, it’s clear that we cannot continue down the misguided path of expanding fossil fuel infrastructure. We owe it to our children and grandchildren to begin the immediate transition to the low-carbon economy. B.C. is a leader amongst the provinces, adopting carbon tax increases that are ahead of federal requirements. Our Caucus is working closely with the B.C. NDP minority government to create a clean growth strategy that will further advance our efforts. I hope the federal government will now realize that there is an enormous opportunity to support B.C.’s leadership, rather than attempting to force our province to shoulder the huge environmental and economic risks that this project presents.”

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Media contact
Jillian Oliver, Press Secretary
+1 778-650-0597 | jillian.oliver@leg.bc.ca