Alberta Premier Rachel Notley says she welcomes BC’s “due diligence” over Trans Mountain Expansion
The new NDP government in British Columbia has retained veteran lawyer Thomas Berger to advise on the best way to assert provincial jurisdiction and frustrate construction of Kinder Morgan’s Trans Mountain Expansion pipeline, slated to begin work next month.
At a Thursday morning press conference, Attorney General David Eby and Environment Minister George Heyman, outlined both “legal and consultation steps” the government will take immediately.
“Mr. Berger will provide legal advice to government on the options for participation in legal challenges, and those hearings are scheduled to begin in federal court later this fall,” Eby said.
There are two immediate legal challenges BC will be looking to join as an intervenor.
In Nov., the Federal Court of Appeal will hold a judicial review of Canada’s approval of the pipeline project. The Tsleil-Waututh Nation, whose traditional territory includes the Burrard Inlet, site of Kinder Morgan’s terminal, initiated the review, which has since been joined by almost two dozen other groups. The Squamish Nation has a similar review upcoming, but Heyman says no trial date has yet been set.
Margot Young is a UBC law professor and constitutional scholar. She says that while it is true that the federal government has primary constitutional authority over the Kinder Morgan pipeline, it is also the case that all governments – including the Province – have an obligation under section 35 of the Constitution Act, 1982 to consult and accommodate indigenous peoples whose rights are at stake in the pipeline construction.
“The BC government cites this constitutional obligation in today’s announcement that it will seek intervenor status in the upcoming Federal Court of Appeal challenge to the pipeline,” she said in response to emailed questions.
“Clearly, the new provincial government believes that its constitutional obligations (and those under the United Nations Declaration on the Rights of Indigenous Peoples) are powerful counterpoint to federal jurisdiction. Successful argument before a court that section 35 obligations that have not been met will stall – if not foreclose – implementation of any pipeline, regardless of federal approval.”
Berger’s job will be to advise John Horgan’s NDP government on which legal strategies might be successful in persuading Canadian courts that British Columbia should have roughly the same jurisdiction over inter-provincial pipelines as Ottawa.
If the government is successful, presumably that will be the end of the Kinder Morgan project.
The Texas-based pipeline giant says it will be carefully reviewing the BC government’s intentions, but is willing to meet with the Government to “work through” concerns.
“We are committed to working with the Province and permitting authorities in our ongoing process of seeking and obtaining necessary permits and permissions,” said Ian Anderson, president of Kinder Morgan Canada Limited.
“We have undertaken thorough, extensive and meaningful consultations with aboriginal peoples, communities and individuals and remain dedicated to those efforts and relationships as we move forward with construction activities in September.”
The Trans Mountain Expansion project was approved by the National Energy Board with 157 conditions, then given the final green light by Prime Minister Justin Trudeau last Nov. The former BC Liberal government of Christy Clark issued an environmental assessment certificate with 37 conditions, some of which have no been fulfilled, according to Heyman.
James Coleman is a professor with the Dedman School of Law at Southern Methodist Univeristy. He says today’s comments retain some of the softer language from the BC government’s recent statements, but “the big news is that until consultation with First Nations is completed to BC’s satisfaction, work cannot begin.”
“There are a number of permits issued, but they cannot be acted on until the company meets the requirements of the environment certificate that was issued by the previous government of British Columbia. Before they can begin work, the certificate required them to complete environment management plans,” Heyman said during the press conference.
“There are eight of them, only three of them accepted to date and the other five have been not accepted because they have not, according to the Environment Assessment Office, met the test of adequate consultation with First Nations.
Alberta Premier Rachel Notley, whose NDP government has vigorously supported Kinder Morgan, chose to put a positive spin on today’s announcement during a press conference in Ont. for the Enbridge Line 3 pipeline.
“I’m pleased that once again they are doing what many people have observed over the past few weeks, that the BC government has stopped talking about stopping the pipeline and instead they’re talking about ensuring that it meets high standards,” she said in response to reporters’ questions.
She described BC’s decision to intervene in the judicial reviews and to consult further with indigenous groups as “due diligence.”
The Eby and Heyman announcement was not welcomed in Alberta, home of the oil sands, the source of the 525,000 b/d shipped on Trans Mountain Expansion, which when combined with the existing Trans Mountain pipeline will total 900,000 b/d.
“The Horgan government continues to ignore a federal determination that the TMX expansion is in the national interest. Underscore national. A determination that was the culmination of years of consultation, accommodation efforts, a regulatory hearing carried out by a world class energy infrastructure regulator with jurisdiction , the National Energy Board, and sanctioned by the democratically elected Trudeau government,” said retired pipeline executive and author Dennis McConaghy in an email.
“One can expect Horgan, Berger et. al. to go all out to achieve injunctive relief to thwart efforts by Kinder Morgan to proceed with construction. They will be relentless until they are rebuffed by the courts. “