VANCOUVER—In the latest setback for the Trans Mountain expansion, the Federal Court of Appeal has approved six new Indigenous legal challenges to the project, once again raising questions about the fate of the pipeline.

The Crown corporation that now owns Trans Mountain said planning and construction will move forward in the meantime, but lawyer and resource development strategist Bill Gallagher said he wouldn’t expect to see “any shovels in the ground any time soon.”

“This to me is looking like dead pipeline walking,” Gallagher said, calling the court’s decision a “huge win for First Nations.”

The decision also ensures the Liberal government will be saddled with the legal uncertainty around the project — which it spent $4.5 billion to purchase, alongside the existing pipeline — through this October’s federal election.

While the court gave the go-ahead Wednesday to half a dozen First Nations to continue their legal efforts to halt the project, it limited the challenges to the issue of the federal government’s consultation with Indigenous Peoples, particularly its latest round.

The court denied six other applications — from two other First Nations, a coalition of youth climate activists, the City of Vancouver and two environmental organizations — leave to proceed.

A lawyer representing the two environmental organizations said they may appeal the decision to Canada’s highest court.

The First Nations whose challenges will proceed are: Tsleil-Waututh Nation, Squamish Nation, the Ts’elxweyeqw Tribe, the Stk’emlupsemc Te Secwepemc of the Secwepemc Nation, Coldwater Indian Band and Upper Nicola Band. It was earlier challenges by these First Nations that led the court to quash the first federal approval of the pipeline expansion roughly a year ago.

Their latest applications will be heard by a panel of Federal Court of Appeal judges as one consolidated case on an “expedited basis,” the court said Wednesday.

Tsleil-Waututh Chief Leah George-Wilson called the court’s decision “an important step for defending (the nation’s) rights.”

“Tsleil-Waututh Nation participated in consultation in good faith again, but it was clear that Canada had already made up their mind as the owners of the project,” George-Wilson said in a statement.

“Canada continued to do the legal minimum and, in our view, fell well below the mark again ... They approached it with a closed mind.”

The federal government, meanwhile, remains “confident” it met the consultation standard set out by the Federal Court of Appeal in its August 2018 decision.

“We are fully prepared to defend our decision in court,” said Alexandre Deslongchamps, a spokesperson for Natural Resources Minister Amarjeet Sohi, in a statement.

Mario Canseco, president of B.C.-based polling and analysis company Research Co., said Wednesday’s decision would likely have little effect on who people vote for in the upcoming federal election.

“I think everybody who is already upset about the handling of this (Trans Mountain) issue has made up their mind,” said the pollster, pointing to a Research Co. survey that showed that if the election was held in July, the Liberals would have lost more than one of every four votes they received in 2015.

“You see a lot of movement from Liberal to Green, from Liberal to NDP, because of this issue,” Canseco said. “I don’t think the latest court case is going to matter that much.”

But the decision is likely good news for the Green Party, he said, because it means the pipeline project could be tied up in courts for a while longer, making it a relevant issue for the environmentally conscious party to campaign on.

“It definitely helps them in the door-knocking stages, especially if they want to make gains in areas that have shown to be more concerned about this — (Vancouver) Island is one of them,” Canseco said.

The Government of Canada took no position on whether the Federal Court of Appeal should give leave to the First Nations to challenge the pipeline approval but said federal lawyers would defend the Trans Mountain decision if applications for judicial review moved forward.

Conservative MP Michelle Rempel criticized the government for submitting no defence against 11 of the 12 motions seeking leave to appeal. The court decision says the government did so because it considered the threshold for leave to be quite low.

“Today we found out Justin Trudeau rolled over and refused to stand up for the Trans Mountain pipeline in court,” Rempel said.

As the consolidated challenges proceed, the Federal Court of Appeal must now decide whether the latest consultation with First Nations was “adequate in law to address the shortcomings in the earlier consultation process,” Justice David Stratas wrote in his decision.

Stratas described his role in determining which applications should proceed as a “thorough customs inspection at the border” rather than a “cursory checkpoint on the road to judicial review.”

When it comes to the adequacy of the consultation, Gallagher said Stratas “found things in the car that didn’t pass the legal smell test.”

“Many of the Indigenous and First Nation applicants now allege that the poor quality and hurried nature of this further consultation rendered it inadequate,” Stratas wrote.

The court limited the scope of the six challenges to the federal government’s consultation with First Nations and other Indigenous communities between Aug. 30, 2018, when the Federal Court of Appeal quashed the Trans Mountain project the first time, and June 18, 2019, when the federal government reapproved the project.

The court said the litigation will be under “short and strict deadlines.”

“There is a substantial public interest in having the upcoming proceedings decided very quickly one way or the other,” Stratas wrote.

On its website, Trans Mountain says construction of the right-of-way through Greater Edmonton is expected to start this month and continue through to March 2020. In August, the Crown corporation also announced an immediate return to work at the Burnaby Terminal and the Westridge Marine Terminal.

In denying the applications from the other two First Nations — the Stz’uminus First Nation and the Shxw’ōwhámel First Nation — the court ruled that both raised concerns that could have been addressed in the earlier legal challenges, which led the Federal Court of Appeal to quash the initial project approval.

Vancouver Mayor Kennedy Stewart said he’s disappointed the city’s application was also denied. The city is considering its legal options, including supporting the six First Nations continuing to fight the pipeline.

The Trans Mountain expansion “is of course very bad for Vancouver, bad environmentally and does nothing to push forward reconciliation,” the mayor said.

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Ecojustice, an environmental law charity that is representing the non-profit Raincoast Conservation Foundation and Living Oceans Society conservation group, said it may appeal the decision to Canada’s Supreme Court.

“Going to the country’s highest court may seem like a drastic measure, but — in the midst of a climate emergency and biodiversity crisis — these are drastic times,” Ecojustice lawyer Margot Venton said.

The Federal Court of Appeal in part quashed the Trans Mountain pipeline project last August because the National Energy Board — now called the Canada Energy Regulator (CER) — had not considered the impact the project would have on marine shipping and the critically endangered southern resident killer whales.

The federal government redid the CER assessment and reapproved the controversial pipeline project on June 18.

Deslongchamps said the government made the decision because they were “confident” they had both fulfilled their duty to consult with Indigenous communities and put “strong environmental protections” in place through the CER’s 156 required conditions and the $1.5-billion Oceans Protection Plan.

The court agreed. Stratas wrote that the CER produced a “comprehensive, detail-laden” report that suggested ways to mitigate the effect of increased marine shipping.

But Venton said that because the stakes are so high — a critically endangered population of whales could be wiped out — the adequacy of the new report should be tested in a court of law.

“What hasn’t been decided is whether (the National Energy Board) actually did that to the standard required by Canadian law — and that, we think, remains an unanswered and important question.”

Trans Mountain sought to have just one applicant, the youth collective, out of 12 pay the company’s legal fees. The court agreed to order the four youth to pay up.

The four teens called the decision “unfair,” according to their lawyer, Patrick Canning.

“Those in power have done nothing to fight climate change, and they want us to do nothing as well,” said Lena Andres, 17, in a news release Wednesday. “But we will persevere; this fight is far from over.”

The Alberta government acted as an intervener in this case and has long argued that the pipeline project should go ahead.

In a written statement, Alberta’s minister of energy, Sonya Savage, said: “We have a real problem in Canada completing projects that are clearly in the national interest, and the federal government should in no way be using today’s ruling as cover to delay construction on this taxpayer-owned pipeline.”

She went on to say Alberta would continue to intervene in all subsequent legal challenges.

The expansion would twin the existing 1,100-kilometre pipeline, triple the flow of diluted bitumen and other petroleum products and is expected to result in a sevenfold increase in tanker traffic through the Burrard Inlet. It is expected to create an equivalent of 15,000 construction jobs and 37,000 other jobs each year over 20 years of operation, according to Trans Mountain.

The controversial project has pitted B.C. leaders against their Alberta counterparts as well as the federal government. The two sides disagree about whether the environmental consequences of an oil spill and increased tanker traffic are worth the economic gain from exporting crude oil to international markets.

Tim McMillan, the president of the Canadian Association of Petroleum Producers, said the expansion “is critical to connecting sustainably produced Canadian oil and natural gas to developing economies with high growth markets.”

McMillan said the industry association is disappointed by the court’s decision but expects construction to begin in September as planned.

Gallagher, who described himself as a “huge proponent” of the pipeline, isn’t so optimistic.

“This project now has a serious cloud hanging over it,” he said.

The Trans Mountain expansion project is “shaping up as one mean missed opportunity after another,” he said. “Could have been handled differently.”

With files from Laura Kane at The Canadian Press

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