Experts - Federal Court of Appeal revokes construction approvals for Trans Mountain


Published: 30Aug2018

"In a stunning blow, the Federal Court of Appeal has quashed the government's approvals to build the Trans Mountain expansion project — a major victory for Indigenous groups and environmentalists opposed to the $7.4-billion project." (CBC )

Sébastien Jodoin, Assistant Professor, Faculty of Law

Professor Jodoin's research focuses on legal and policy solutions to complex environmental and social problems that cut across multiple fields and levels of governance. His areas of interest include sustainable development, transnational law, public policy, environmental law and governance, climate change, human rights, disability, social innovation, and socio-legal research.

"The government made two errors that motivated the Federal Court of Appeals’ decision to revoke construction approval for Trans Mountain. First, the federal government approved the project on the basis of the National Energy Board’s report which did not assess the impacts of marine shipping on marine environments. Secondly, the government did not establish a dialog with First Nations to understand and address their concerns regarding the pipeline’s impacts. The court’s decision casts doubt on the sincerity of two key promises made by the Trudeau government, conciliating environmental issues with the economy and reconciliation with First Nations."

sebastien.jodoin-pilon [at] (subject: Trans%20Mountain) , (English, French) [at] (Evan Fox-Decent), Full Professor, Faculty of Law

Evan Fox-Decent teaches and publishes in legal theory, political theory, private law, public law, and international law.

“Jean Charest suggested on BNN that the feds could use "special legislation" to essentially avoid the FCA's Trans Mountain ruling. This would be problematic from a legal point of view. The FCA held that the federal government breached its duty to consult First Nations. That duty is anchored in section 35 of the Constitution Act, 1982, and is not part of the Canadian Charter of Rights and Freedoms. The Canadian Charter gives legislatures two ways (and only two ways) to avoid the constitutional limits it imposes: s. 1 (the limitations clause) and s. 33 (the notwithstanding clause). Neither of these apply to s. 35, which, again, lies outside the Canadian Charter. So it is far from clear where the federal government could acquire lawful legislative authority to avoid the duty to consult the FCA says it owes to First Nations.” [at] (English)



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