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ARTICLE · 11 SEPTEMBER 2018

Flawed Trans Mountain EA Equals Flawed Approval

Miller Titerle + Company
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We recently commented on one of the two key bases for the Federal Court of Appeal's ruling last week that quashed the Federal Government's approval of the Trans Mountain Expansion Project (the "TMEX")

CanadaTransport
Miller Titerle Company LLP
Miller Titerle Company LLP
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We recently commented on one of the two key bases for the Federal Court of Appeal's ruling last week that quashed the Federal Government's approval of the Trans Mountain Expansion Project (the "TMEX") – specifically, Canada's failure to meet its duty to consult Indigenous Nations.

Below we discuss the other key basis for the court's ruling – namely, that the Governor in Council ("GIC") unreasonably relied on a materially deficient and flawed report from the National Energy Board (the "Board") in approving the TMEX. In particular, the court found that the Board's report was flawed from the outset due to the Board's failure to properly carry out the project scoping process, a critical preliminary stage of the environmental assessment process under the Canadian Environmental Assessment Act, 2012 ("CEAA 2012"). The court found that the GIC was "on notice" that the Board's report was flawed, yet relied on it anyway, rendering its decision to approve the TMEX invalid.

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