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Approval for Trans Mountain pipeline project violates obligation to protect endangered orcas: Canada’s Federal Court of Appeal

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Killer Whales. Photo courtesy Raincoast Conservation Foundation

Vancouver: In a significant decision on Thursday (30 August 2018) the Federal Court of Appeal unanimously ruled that the federal government’s approval of the project violated its legal obligations to protect endangered orcas under the Species at Risk Act.

This ruling is a critical win for communities that stand to be affected by this risky pipeline project, for the climate, and for coastal ecosystems, including the endangered Southern Resident killer whales. Going forward, we urge politicians and other project proponents to shift their focus away from projects that lock us into dependence on fossil fuels. Dyna Tuytel, Ecojustice lawyer

Ecojustice, Living Oceans Society and Raincoast Conservation Foundation — conservation groups that fought the approval of the Trans Mountain pipeline project in a historic hearing last October — are calling the Federal Court of Appeal ruling “a critical win” for endangered killer whales, communities, the climate and the coast.

In a statement, Raincoast Conservation Foundation said: “The decision means that the government’s approval of the project cannot stand. If the project is to proceed, the government must now backtrack to address marine shipping issues and the impacts they would have on Southern Resident killer whales.

Ecojustice lawyers appeared in court on behalf of Living Oceans Society and Raincoast Conservation Foundation to argue that the National Energy Board report on the project, released in 2016, used an overly narrow interpretation of the law to avoid addressing the pipeline expansion’s impact on endangered Southern Resident killer whales and their critical habitat. Therefore, the groups argued, Cabinet broke the law when it relied on the NEB report to approve the project.

The pipeline expansion would lead to a seven-fold increase in tanker traffic through the critical habitat of the Southern Residents. According to expert evidence filed by Raincoast Conservation Foundation, if the project were to proceed without efforts to address vessel noise, pollution, and shortages of prey for the whales, it would result in a more than 50 per cent chance of the Southern Residents becoming effectively extinct this century.

“Lost in the midst of the government’s push to build the Trans Mountain project was a small population of endangered killer whales. With as few as 75 Southern Residents left and even fewer reproductive individuals, this population will likely be unsustainable if the project were allowed to proceed. The Court has sent a clear signal that the rule of law will not accommodate environmental decision-making that fails to address these environmental risks,” Raincoast Conservation Foundation Senior Scientist Paul Paquet said.

The groups’ application for judicial review of the government’s approval was one of multiple cases that the court heard during a marathon two-week hearing in October 2017.

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

The Federal Court of Appeal also found that the government did not properly consult with First Nations before approving the project.

“We’ve said from the beginning that the risks this project poses to coastal ecosystems, to the communities that surround them and to endangered killer whales in particular are simply too high. Today’s decision affirms that dangerous projects like the Trans Mountain project cannot go ahead without considering these threats,” Karen Wristen, executive director of Living Oceans Society said.

Despite strong scientific evidence on impacts on the Southern Residents, widespread public opposition and multiple legal challenges, the Canadian government announced on May 24, 2018, that it will purchase the existing pipeline and planned expansion from Texas-based company Kinder Morgan for $4.5 billion.

Ecojustice is Canada’s largest environmental law charity. Ecojustice goes to court and uses the power of the law to defend nature, combat climate change, and fight for a healthy environment for all.

Raincoast Conservation Foundation is a team of conservationists and scientists empowered by research to protect the lands, waters and wildlife of coastal British Columbia. As a charitable, non-profit conservation science organization that operates a research lab, research station and a research/sailing vessel, they are unique in Canada.

Living Oceans Society has been a leader in the effort to protect Canada’s oceans since forming in 1998. Living Oceans Society advocates for oceans that are managed for the common good, according to science-based policies that consider ecosystems in their entirety.

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