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A large pipe sits on the sandy ground. An oil rig is in the background and a large group of people gather near it.

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Challenging the Trans Mountain pipeline expansion

Raincoast Conservation Foundation et a.l v. Attorney General of Canada et al.

October 30, 2014

The Trans Mountain pipeline project and associated tanker traffic pose a significant threat to the future of endangered Southern Resident killer whales.

Despite this, Canada’s National Energy Board (NEB) concluded in May 2016 that the project’s benefits (all economic) outweighed the burdens (mostly environmental). One month later, Ecojustice lawyers filed litigation challenging the lawfulness of the NEB’s report.

Then, in November of that same year, cabinet officially approved the controversial pipeline project. In response, Ecojustice lawyers applied to the court for leave for a judicial review of the approval. The groups argued that cabinet broke the law when it relied on the NEB’s report that used an overly narrow interpretation of the law to avoid addressing harm to endangered Southern Resident killer whales and their critical habitat.

Ecojustice lawyers, on behalf of Raincoast Conservation Foundation and Living Oceans Society, appeared in court in October 2017, to argue against the project as part of a landmark, two-week hearing at the Federal Court of Appeal (Tsleil-Wauthuth Nation et al. v. Attorney General of Canada, et al., 2018 FCA 153).

The court heard multiple cases at the time, including those from the Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band, Upper Nicola Band, Stk’emlupsemc Te Secwepemc Nation, Sto:lo applicants. The City of Burnaby and City of Vancouver also challenged the project in court, and the government of British Columbia intervened in the hearing.

Despite strong scientific evidence on impacts on the Southern Residents, widespread public opposition and multiple legal challenges, the Canadian government announced the following May that it would purchase the existing pipeline and planned expansion from Texas-based company Kinder Morgan for $4.5 billion.

Then, on Aug. 30, 2018, the Federal Court of Appeal handed Ecojustice’s clients and the First Nations applicants’ a major victory. The court found that the government’s approval of the project was void because it did not comply with Canadian law, including the responsibility to protect endangered Southern Resident killer whales. It also found the government had failed to properly consult with Indigenous Peoples.

On Oct. 3, 2018, the Canadian government announced that it would not appeal the decision.

The Trans Mountain pipeline project threatens endangered Southern Resident killer whales, the climate, and coastal ecosystems and Canadians. The proposed expansion would carry 890,000 barrels of oil per day from Edmonton to the Westridge Terminal in Burnaby. The oil would then be shipped by tanker through the Salish Sea and on to American and overseas markets.

If built, the expansion would lead to seven times more tanker traffic crossing the Salish Sea, critical habitat for the Southern Residents. This raises the risk of tanker strikes, which could be deadly to whales, or a catastrophic oil spill.

Even if neither of those scenarios play out, the increase in tankers will mean more underwater noise when current levels already severely impact the whales’ ability to navigate, hunt and communicate with each other.

The federal government has a legal responsibility to help at-risk species, such as the Southern Resident killer whales, survive and recover. And Ecojustice is committed to continuing to use the power of the law to hold it to account.

While we have reached the end of the road in this particular case, Ecojustice and its allies continue to call on the government to introduce enforceable, legally-binding protections for the whales such as mandatory — instead of voluntary — vessel slow-downs and a measurable underwater noise reduction target.

If we want the Southern Resident killer whales to survive for generations to come, we have no choice but to continue pushing for better protections.

The Southern Residents already face imminent threats to their survival, including:

  • A lack of Chinook salmon, the whales’ preferred prey
  • Acoustic and physical disturbance from vessel traffic
  • And contamination of the ecosystems where they live

At this rate, the declining population cannot handle these existing threats — much less additional hazards posed by the Trans Mountain pipeline expansion.

Without immediate, decisive, and effective action, we risk losing Southern Resident killer whales altogether.

Ecojustice staff

Dyna Tuytel

Margot Venton

Mar 2020
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