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Unofficial summary of the Federal Court of Appeal’s decision in Coldwater v. Canada (A.G.) re: TMX

#TMX #TransMountain…
Other tweeps will comment on the substance of the decision, and as I expect that they will note everything I can say and more, I will wait for their analysis.

I will note a few basic procedural points:

This court challenge was the only challenge that could affect the actual approval for TMX itself (the prior FCA decision on the first approval was the only reason construction could not proceed until last year). Any other court challenges will be for smaller stakes.

The applicants have 60 days to seek leave to appeal to the Supreme Court of Canada. If leave is sought, expect the applicants to file on or just before 6 April (my calculation of days), as they would also need to file their arguments as to why leave should be granted.

I would not expect a decision from the Court on whether or not to grant leave until the fall. If leave is granted, arguments would likely not be heard until 2021; so it could be 2 years before the SCC decides this case if it goes that far.

Absent a final decision from the SCC granting judicial review, construction can proceed. It is possible that an interlocutory injunction could be sought to prevent construction until the SCC decides the case, but I note that no injunction was sought for the FCA.

While TMX’s approval to proceed has not been affected, there continues to be unresolved issues including some affecting the First Nations that were the applicants in this litigation. This includes detailed routing decisions.

Consultations will be required for those decisions, and (more limited/focused) litigation could arise over those decisions. This can add some cost/delays, although I expect the project budget/schedule already anticipates that.

At the moment, this decision represents a huge win for the TMX proponents.

It may also represent a big win for the Government of Canada in demonstrating it can fulfill its constitutionally imposed obligations to consult Indigenous peoples.

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