“Dubious, bizarre lawyering” nets First Nation federal court rebuke, $2000 fine in anti-TMX challenge

Coastal First Nation resistance to TMX suffered an embarrassing setback after the Federal Court of Appeal rebuked two groups and fined Tsleil-Waututh $2000 for “defiant” and “most serious” breaches in applications for judicial review of approval for the $7.5 billion pipeline expansion.

“Squamish Nation filed submissions adopting those of Tsleil-Waututh Nation…(but) is not as badly out of compliance,” writes Justice David Stratas in his September 25, 2019 ruling, which notes their filings accuse him of bias and therefore ineligible for a panel that ultimately hears the appeal.

“I have not prejudged this review. I am not biased. I confirm that I have been open-minded and persuadable on all issues throughout,” Stratas responds.

“This should be apparent, in part…that, in the end, I have ordered a remedy similar to that proposed by Tsleil-Waututh Nation.”

Just three weeks earlier on September 4, Stratas gave the Tsleil-Waututh leave to appeal cabinet’s second approval of the 1160km bitumen pipeline from Edmonton to Vancouver on the following grounds: “was the consultation adequate in law to address the shortcomings in the earlier consultation process.”

That ruling also disqualified eco-activist groups and the City of Vancouver from proceeding in the consolidated TMX opposition, placing paramount importance to legal questions advanced by First Nations; whether the federal government fulfilled its consultation duties to a constitutional standard.

According to Stratas’ latest decision, the First Nations’ application strayed well beyond addressing this core matter at least seven times – including that Stratas be removed from the appeal panel altogether.

Bill Gallagher, veteran regulatory lawyer and longtime insider where resources and energy interests intersect with Indigenous rights, calls the Tseil-Waututh’s legal strategy “bizarre”.

“Who would expect a couple of First Nations to turn on the judge and the court that just gave them advance to the Federal Court of Appeal with a full panel,” Gallagher told The Post Millennial.

“The number one complaint of First Nations in this country, coast to coast, is access to justice. And here, they won access to justice, courtesy of this judge, then turn around and show a major case of legal ingratitude.”

“It’s highly dubious and quite bizarre lawyering in my view,” he added.

The Tsleil-Waututh and Squamish Nations scored their first victory against the Trans Mountain project back on August 30, 2018, when the Federal Court of Appeal quashed original National Energy Board permits.

In its unanimous decision the appeal court concluded that the federal government could not make an informed decision because the “Board’s process and findings were so flawed that the Governor in Council (cabinet) could not reasonably rely on the Board’s report.”

Within 24 hours of this decision, Kinder Morgan shareholders voted to sell Trans Mountain to the Government of Canada and Ottawa re-started consultations with affected First Nations.

Last June, Prime Minister Justin Trudeau announced cabinet’s second approval of the project’s twinning, which precipitated the Squamish and Tsleil-Waututh Nations’ second crack at Federal Court.

Trudeau also said his government would be willing to sell the entire project to Indigenous interests, of which there are three separate consortiums vying for an ownership stake.

The Squamish Nation did not respond to TPM’s requests for comment and Ben West, spokesperson for the Tsleil-Waututh told TPM the First Nation would not speak to the matter while it is before the courts.