Federal Natural Resources Minister Seamus O’Regan used the same phrase on Thursday to offer an olive branch to opponents of a government-owned oil pipeline that he did five months ago: “We see you and we hear you.”

Both times, the minister was reacting to a favourable court ruling for the Trans Mountain pipeline and expansion project, which has been owned and operated by Canada ever since the Trudeau government bought it from a Texas energy company in 2018.

On Thursday, Canada’s top court refused to hear an appeal from First Nations. One of those, the Coldwater Indian Band, fears that an oil spill would contaminate its drinking water source. It said the decision would not end its fight, and it may be “forced back to court” to protect its aquifer.

“To those who are disappointed with today’s SCC (Supreme Court of Canada) decision — we see you and we hear you,” O’Regan said in a statement. “Canada will continue to engage with Indigenous groups at each step of the project in the months and years to come, and in the spirit of partnership, to make sure we get this right.”

It was a similar sentiment to the one the minister expressed in February when the Federal Court of Appeal ruled the government’s second attempt at consulting with Indigenous peoples over the project was “genuine.”

“I want to say clearly to those who are disappointed with today’s court decision, we see you and we hear you,” he said at the time. Canada would “continue to engage with you and your communities,” he had added, and “take every step that we can to ensure that this project moves forward in the right way.”

‘We are disappointed, but not surprised’

Coldwater, as well as Tsleil-Waututh Nation, Squamish Nation and Ts’elxwéyeqw Tribe, which had brought the legal challenge, disagreed with the February decision and asked the Supreme Court to hear the case. Coldwater Chief Lee Spahan said then that he felt Canada “had their minds set already on this decision.” 

On Thursday, the Supreme Court dismissed that appeal, meaning that the earlier Federal Court of Appeal ruling stands, and Trans Mountain remains an approved project. The court did not give any reason for its decision, which is the custom.

“We are disappointed, but not surprised,” Spahan said Thursday. “We knew the chances of the SCC granting leave were slim given the momentum of the project and the Federal Court’s finding that protection of our water can still take place in future routing decisions, but we felt we had to use every tool available to us.”

The dismissal by the Supreme Court is the latest of several high-profile legal victories for the embattled pipeline project. In January, the court dismissed a separate appeal that would have allowed the B.C. government to regulate heavy oil flowing through its territory.

As well, in March it said it wouldn’t hear challenges from several groups including Youth Stop TMX, which tried to argue that the government didn’t fully examine the impact that the fossil fuel project would have on their “right to a healthy future.”

Canadian government scientists have concluded that global carbon pollution must be cut to “near zero” to limit the harsher impacts of the climate crisis, including more urban and coastal flooding, wildfires, threatened ecosystems and a loss of fresh water.

The Trudeau government has approved the oil pipeline project twice, first in November 2016, and then again in June 2019, after the Federal Court of Appeal had quashed its first approval.

A federal Crown corporation and its subsidiaries have been operating the existing pipeline, and proceeding with construction of the expansion project, which would roughly triple its capacity up to 890,000 barrels a day flowing from near Edmonton to a terminal in metro Vancouver. 

‘We may be forced back to court’

O’Regan said the government wants to expand the oil pipeline because it will “generate revenue to help fund clean energy and climate change solutions.” The government also says the construction is creating thousands of “good, well-paying jobs.”

But First Nations still have concerns about the project. Last month, Trans Mountain experienced an oil spill near a significant burial ground for Sumas First Nation, which is now calling for an independent investigation.

And this spring, Coldwater objected to the federal energy regulator’s handling of Trans Mountain oil pipeline hearings, saying its approach in the era of COVID-19 to abandon oral cross-examination in favour of written questions was unfair.

On Thursday, Spahan said Trans Mountain was “refusing to complete” a study of its aquifer and that O’Regan was “failing to fulfil his obligations to us and ensure that our drinking water is protected for future generations.”

“If Canada continues to fail us, and if Trans Mountain refuses to move their project out of the recharge zone of our aquifer, we may be forced back to court in an effort to protect our drinking water,” he said.

Carl Meyer / Local Journalism Initiative / Canada’s National Observer