Canada: Federal Court Of Appeal Quashes Cabinet Approval Of Trans Mountain Pipeline Expansion

Last Updated: September 7 2018
Article by David Stevens and Matthew Helfand

On August 30, 2018, the Federal Court of Appeal released its decision in the matter of Tsleil-Waututh Nation et al. v. Attorney General of Canada et al. In this decision, the court has quashed Cabinet's approval of the Trans Mountain pipeline expansion project. This decision casts a shadow of uncertainty over the project for the immediate future. The Tsleil-Waututh Nation decision is the most recent chapter in the ongoing chronicle of the Trans Mountain pipeline expansion project. This blog post offers an overview of the recent history of the Trans Mountain pipeline expansion project and a review of the Tsleil-Waututh Nation decision.

The Trans Mountain pipeline is a project that goes as far back as the 1950s, when the pipeline began transporting petroleum products from Alberta to British Columbia and parts of the United States. As we have written in a previous blog post, in 2007, Texas-based Kinder Morgan assumed control of the Trans Mountain Project.

In 2013, Trans Mountain submitted an application to the National Energy Board (NEB) seeking approval for an expansion of the Trans Mountain pipeline project. The Trans Mountain pipeline expansion project is a proposal to twin the existing 1,147 kilometer Trans Mountain pipeline system and to build 981 kilometers of new pipeline. The proposed pipeline system would run from Edmonton, Alberta to Burnaby, British Columbia, and ship an estimated 890,000 barrels of oil per day.

In May 2016, the NEB issued a report recommending the approval of the Kinder Morgan application, albeit with certain conditions. Acting on this report, the federal Governor in Council (Cabinet) then directed the NEB to issue a certificate of public convenience and necessity approving the construction and operation of the expansion project.

The Trans Mountain pipeline expansion project has been met with considerable opposition which challenged the project's execution. Detractors of the Trans Mountain pipeline expansion have expressed their opposition in both the court of public opinion and the court of law. As we have written in previous blog posts, a variety of groups applied to the courts to challenge the pipeline's approval over the past few years (see here and here). More recently, the British Columbia government announced its plans to issue new regulations that will stop pipeline companies from increasing bitumen shipments through the province. As described in a recent post, in April 2018, the B.C. government submitted a reference question to the B.C. Court of Appeal regarding these recently-announced regulations.

In April 2018, Kinder Morgan announced that it would be suspending all non-essential activities and related spending on the project (read more about that announcement here). Several weeks later, however, the Government of Canada announced its intention to purchase the pipeline project from Kinder Morgan (Read more about the Government of Canada decision here).

So, what is Tsleil-Waututh Nation all about? In this case, a number of applications for judicial review were brought before the Federal Court of Appeal. These applications were heard in October 2017. The applicants included several First Nations, including the Tsleil-Waututh Nation, the Cities of Burnaby and Vancouver, and two non-governmental actors.

This case involved two discrete matters that were consolidated into one hearing.

The first matter was for the judicial review of the report from the NEB, which recommended that Cabinet direct the NEB to issue the certificate of public convenience and necessity.

The second matter was for the judicial review of the decision of Cabinet to accept the recommendation of the NEB, and to issue the Order in Council directing the NEB to issue the certificate of public convenience and necessity.

The application for review of the Board decision was dismissed. In this decision, the court held that the report of the Board created pursuant to section 52 of the National Energy Board Act was not a justiciable matter.

However, the applications for judicial review of the decision of Cabinet were granted. There were two primary grounds to challenge the decision of the Governor in Council. The first was the factual basis of decision making, and the second was the duty to consult.

With respect to the first ground of challenge, the court found that the report of the NEB was unacceptably flawed. The court found that the report did not provide the Governor in Council with pertinent information related to the project's environmental effects. Specifically, the NEB report wrongly narrowed the scope of its environmental assessment by excluding the effect of Project- related shipping of petroleum at the pipeline's destination. Since the NEB report forms the basis of the Governor in Council's decision on the matter, Cabinet's decision to direct approval was unreasonable.

With respect to the second ground of challenge, the court found that the Government of Canada failed to adequately discharge its constitutional duty to consult with First Nations. Specifically, "Phase III" of the duty to consult.

As part of Phase III, the Government of Canada was required to engage in a meaningful and reciprocal dialogue with First Nations. The court found that this did not occur. Instead of a two-way dialogue, the Government of Canada limited their mandate to listening to and recording the concerns of affected First Nations. The lack of adequate consultation also rendered the Governor in Council's decision unreasonable.

Pursuant to these findings, the Federal Court of Appeal quashed the Order in Council directing that the NEB approve the Trans Mountain pipeline expansion project. The issue of project approval has been remitted to Cabinet for redetermination, having regard to the shortcomings identified by the Federal Court of Appeal. Further, the court ordered that Phase III consultation must be re-done.

The decision in Tsleil-Waututh Nation is being seen as a partial victory for opponents to the pipeline. This decision will also likely result in some immediate delay on the project. However, the fact that the Government of Canada is the owner of the pipeline adds an additional dimension to the matter. Unlike a private actor, the Government of Canada has legislative tools at its disposal to ensure the project's timely execution. Whether or not the Government of Canada chooses to use legislative tools to usher the project forward remains to be seen.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

David Stevens
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions