A federal court has ruled in favour of the Trans Mountain Expansion Project, defeating the appeal launched by Coldwater Indian Band, Tsleil-Waututh Nation, Squamish Nation and a coalition of smaller Sto:lo groups from the Fraser Valley.

In a unanimous 3-0 decision, judges ruled on Tuesday in Vancouver that Ottawa had done due diligence in its consultations with First Nations people. This second round of consultations was made necessary by a Federal Court of Appeal ruling in August of 2018 that decreed the original consultations had been a failure, and did not adequately address the concerns of indigenous peoples.

“This was anything but a rubber-stamping exercise. The end result was not a ratification of the earlier approval, but an approval with amended conditions flowing directly from renewed consultation, all very much consistent with the concepts of reconciliation and the honour of the Crown,” the court said.

The ruling does not give a blanket approval for the project, and Trans Mountain is still required to consult with Coldwater Band about the proposed route through the Coldwater Valley. If the Band still objects to the route they can object through a “route hearing” before the Canada Energy Regulator (formerly the National Energy Board), where Trans Mountain would have to prove its chosen route is safe.

The four First Nations groups can appeal to the Supreme Court within 60 days if they are not happy with the Federal Court of Appeal’s decision, though it is unclear if the court will be willing to hear another appeal.

Coldwater Chief Lee Spahan said the approval of the proposed route is still a “live issue”, and insists the reserve’s aquifer must be protected.

“For us water is life. We will do everything in our power to ensure our sole source of drinking water is protected from the Trans Mountain Expansion Project. The Court’s decision today does not change that,” said Chief Lee Spahan. “If anything, the decision confirms that Canada has an ongoing obligation to consult Coldwater, including on project routing and protection of our aquifer.”

The proposed route would see the pipeline constructed through an aquifer that is the sole source of drinking water for roughly 320 people on the Coldwater Reserve, which is located approximately 13 kilometres southwest of Merritt.

“Today’s decision from court we are very disappointed with. However, today the court did confirm that the route through the Coldwater Valley still has to be determined. The risks to our community drinking water still need to be studied. That work is on the way,” said Spahan.

The court felt that Trans Mountain’s promise to install monitoring wells, which would alert and potentially help avoid issues stemming from a spill, was an adequate condition.

“The case law is clear that although Indigenous peoples can assert their uncompromising opposition to a project, they cannot tactically use the consultation process as a means to try and veto it,” the court ruled.

The Canada Energy Regulator still has the option to re-route the pipeline at the Coldwater reserve community’s request, if it feels that is a necessary step. Chief Spahan says the years-long fight to change the proposed route will continue. 

“We are considering all of our options, including an appeal to the Supreme Court of Canada,” said the Chief. “In the meantime, we will continue to work with Trans Mountain to study our aquifer and alternative routes through the Coldwater Valley. The adequacy of future consultation remains to be seen”, said the Chief. “This story is not over, there is still significant uncertainty about how, and whether, our drinking water will be protected.”

Prime Minister Justin Trudeau’s federal government purchased the pipeline and related infrastructure for $4.5 billion in 2018, and construction of the expansion was already underway.

The project is now estimated to cost up to $10-billion.