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B.C. hires native rights lawyer on Kinder Morgan pipeline Province to seek intervenor status in challenge to National Energy Board approvals

Author: Brent Richter 

Media Outlet: North Shore News

The B.C. NDP is beginning to deploy its legal strategy to slow or stop the construction of Kinder Morgan’s Trans Mountain pipeline.

Environment Minister George Heyman and Attorney General David Eby announced Thursday morning that the province has hired Thomas Berger, a lawyer and former B.C. Supreme Court justice with expertise in aboriginal rights and title law, to represent the province in legal challenges already launched over the pipeline’s approval.

Specifically, Berger has been tasked with overseeing the province’s response to a lawsuit from the Squamish Nation challenging the environmental certificate the previous Liberal government granted for the project in January.

Under Berger’s guidance, the province will also apply to have intervenor status in another legal challenge to the National Energy Board’s approval currently winding through the federal court. Those hearings are expected later in the fall, although Kinder Morgan has said it plans to begin construction as early as September.

But Heyman said there will be “no shovels in the ground” until the company has met all of the requirements set out in the environmental certificate, several of which related to First Nations consultations which are still outstanding.

“Until these consultations are completed in a way that meets these legal obligations, work on this project on public land cannot proceed,” he said.

Other than some private lands on Burnaby Mountain, including the tank farm and Westridge Terminal, most of the pipeline crosses Crown land, he added.

Heyman said he was carrying out his mandate to “use every tool available to defend B.C.’s coast in the face of the threat of expanded tanker traffic.”

Eby said Berger’s appointment should send a strong message about B.C.’s commitment to the United Nations Declaration on the Rights of Indigenous People and the Truth and Reconciliation Commission recommendations.

“He is an expert in this area of law, recognized internationally for his work,” Eby said.

When it comes to the legal challenge from the Squamish Nation, Berger will “ensure that the interests of the province, including our government-to-government relationship with First Nations, are protected,” he added. “This is a priority for our government.”

Kinder Morgan released a statement in response, saying the company takes the announcement seriously and that it remains willing to meet with the new government to work through their concerns.

“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,” said Ian Anderson, president of Kinder Morgan Canada Ltd.

The move by the province has the blessing of Green Party leader Andrew Weaver and is being welcomed by environmental groups.

“It’s really encouraging that the new government is taking this seriously -– that they are appointing a very experienced and senior special counsel to advise them on this,” said Eugene Kung, staff counsel with West Coast Environmental Law.

“Because at the end of the day, no matter what actions they take, they need to be first and foremost grounded in meritorious legal actions. They have set things in motion to do that.”

Publication Date: 
Thursday, August 10, 2017