Federal Court of Appeal Quashes Order in Council Approving Kinder Morgan Trans Mountain Pipeline Expansion in Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153

On August 30, 2018, the Federal Court of Appeal released its decision concerning the judicial review of an Order in Council approving the Kinder Morgan Trans Mountain Pipeline Expansion Project (the “Expansion Project”). The Order in Council, dated November 29, 2016, was based on a report and recommendation of the National Energy Board (“NEB”), and directed the NEB to issue a certificate of public convenience and necessity approving the construction and operation of the Expansion Project. The Application before the Federal Court of Appeal was a consolidation of numerous applications for judicial review of the Order in Council. The Applicants seeking to challenge the Order in Council included multiple First Nations, the cities of Burnaby and Vancouver, and two NGOs. The Federal Court of Appeal narrowed the issues before it to two questions: 1. Were the Board’s process and findings so flawed that the Governor in Council could not reasonably rely on…

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