The corporation linked to the Trans Mountain pipeline expansion project demanded a group of teenagers cover their legal bills — before promptly changing its mind without explanation.
Youth Stop TMX, a group made up of Olivier Adkin-Kaya, 18; Lena Andres, 17; Nina Tran, 18; and Rebecca Wolf Gage, 13, had applied for judicial review of the pipeline project, arguing that it violates their inherent rights to life, liberty, security of person and equality.
The Federal Court of Appeal dismissed their application on Sept. 4, and Trans Mountain Pipeline ULC, a general partner of the system now owned and operated by the Government of Canada, demanded these four teenagers cover its legal costs. The court granted the request.
But within a couple of days, after National Observer had asked questions, Trans Mountain informed the teens’ legal counsel that it had changed its mind and would not be pursuing costs after all.
They did not say in time for deadline why they had changed their mind.
“This pipeline — and the oil that will flow through it — is destroying my future,” Wolf Gage said in a Sept. 4 statement. “Now the government-owned pipeline company wants us to pay their legal bills? We won’t stop defending our right to a healthy atmosphere and safe future until we get a healthy planet for all generations.”
@ElizabethMay The Federal Court of Appeal has denied 4 youth climate strikers from across Canada the opportunity to bring their constitutional challenge to the Trans Mountain Pipeline Expansion project. In doing so the court also ordered the youth to pay TM's legal costs.— Lena Andres (@LenaAndres11) September 4, 2019
TMX backs off in unsigned email
The group is one of 12 petitioners who sought to challenge Prime Minister Justin Trudeau's second approval of the Trans Mountain expansion project. It's the only group to which Trans Mountain and the Crown responded, but the Crown did not ask that the teens cover their costs.
The Federal Court of Appeal dismissed the application and stated in its Sep. 4 ruling that "the respondent, Trans Mountain Pipeline ULC, asked for its costs and it is entitled to them."
One of the lawyers for Youth Stop TMX, Erin Gray, told National Observer that such a demand was “egregious.”
She said at the time that she wasn't sure of the costs yet and wouldn’t know until Trans Mountain drafted a bill.
The four activists are receiving legal counsel at a discounted rate and have launched a GoFundMe campaign to cover their own costs. Right now, the goal is $6,000, which they thought they would have to increase once they received a bill from Trans Mountain. In 2018, the pipeline corporation reported revenues of $137.8 million.
The morning of Sept. 6, Gray was still under the impression that Trans Mountain would pursue costs. The corporation hadn’t responded to any requests for comment from National Observer from the prior two days.
That afternoon, Trans Mountain sent an unsigned email to National Observer from its communications account that stated "Trans Mountain will not be pursuing costs."
Youth's case dismissed because of relitigation laws
The teens argued their constitutional rights were violated by “any project that exacerbates climate change” and risks their future, Gray said.
The court dismissed the group’s petition due to relitigation laws. Justice David Stratas explained that arguments can’t be advanced in a later, second proceeding if they were raised, or even “could have been raised,” in the first hearing.
This includes any issues around environmental factors, greenhouse gas emissions, the risk of oil spills and the economics of the project.
The youth activists still expressed discontent at these legal restrictions. “The denial of our request for judicial review silences youth voices,” Andres said.
They pointed out that during the first hearing they were between the ages of 10 and 15 and could not have realistically petitioned the court.
Approved petitions focus strictly on consultation
The six petitions the federal court of appeal accepted were from First Nations and will focus narrowly on the issue of consultation from Aug. 30, 2018, when the court ruled that consultation had been inadequate and the government had more work to do, up to Jun. 18, 2019, the day the government approved the pipeline.
The court explained this is also mostly due to relitigation laws: the First Nations can’t make any arguments around climate change and environmental impacts that were argued in the first hearing or could have been argued.
Rueben George from Tsleil-Waututh Nation said he was happy the court will listen again, but he’s also concerned they will only listen to arguments around consultation.
To him, “consultation is talking about all the issues,” which includes climate change and potential impacts on endangered species and habitats.
While Trudeau once said “governments grant permits, communities grant permission,” the court also emphasized the government doesn’t legally require “consent or non-opposition of First Nations” to fulfil the requirements of consultation.
“Dissatisfaction, disappointment or disagreement with the outcome reached after consultation is not enough to trigger a breach of the duty,” Stratas wrote in the federal court decision.
The court also says Indigenous people don’t get to give or withhold consent. Thanks to the Senate killing Bill 262, we’re back to the old concept of “meaningful consultation,” as the courts have defined it up until now.— Kai Nagata (@kainagata) September 4, 2019
No conflict over pipeline project, court rules
One new argument that Tsleil-Waututh made in its petition was that the government is in a conflict of interest since Trudeau gave the order to purchase the pipeline in 2018. Stratas wrote this legal argument is “flawed.”
“The Governor in Council (meaning the prime minister and cabinet) is not the Government of Canada. The Governor in Council, the decision-maker here, does not own the project.”
This means that while Trudeau’s Cabinet is the decision-maker and directed the state to purchase the pipeline, the Cabinet itself is not the owner. The state is the owner and therefore, according to the court, is not in a conflict of interest.
George still said he’s still optimistic in Tsleil-Waututh’s journey going forward.
“It will be a challenge,” he said. “But I’m still confident in the Canadian Constitution protecting our Indigenous rights.”
The office of Natural Resources Minister Amarjeet Sohi told National Observer it remains confident the government took “the necessary steps to get this right” and they are “fully prepared” to defend their decision in court.
Trans Mountain said in a statement it plans to continue with construction as planned because the cases “do not in and of themselves negate the pre-existing approvals provided by those governmental authorities until and unless the court rules otherwise.”