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B.C. joins legal battles against Trans Mountain pipeline expansion

Author: Derrick Penner 

Media Outlet: Vancouver Sun

The B.C. NDP government has begun efforts to “defend British Columbia’s interests” against Kinder Morgan’s Trans Mountain pipeline expansion by joining the legal fight against the federally approved project and hiring high-powered legal advice.

“We know with the federal government’s approval of this project that this will be a challenge,” said Environment and Climate Change Minister George Heyman on Thursday, “but we’ve committed to stepping up and fighting for B.C.’s interests.”

Heyman and Attorney General David Eby signalled that B.C.’s case will lean heavily on the adequacy of consultations with First Nations with respect to cases that are before the courts and steps in the environmental assessment process that are already underway.

The ministers said that B.C. has enlisted as an external adviser Thomas Berger, a lawyer with a long history in First Nations law including arguing the Calder case that helped establish the concept of Aboriginal title. 

“(Berger) is a living example of First Nations law in Canada,” Eby said, “and we think his presence will signal a couple of things,” including the new government’s commitment to adequately consult Indigenous communities.

Eby said Berger will also take over the defence of the lawsuit that the Squamish First Nation has filed against B.C., arguing that it was not adequately consulted in the provincial environmental review.

Green party leader Andrew Weaver praised the government’s announcement as a “key commitment in our Confidence and Supply Agreement.”

“In the B.C. Green caucus’ view, the process that led to this project’s approval was profoundly flawed,” Weaver said.

However, from a provincial perspective constitutional legal experts have said B.C. has a weak case for stopping a border-crossing pipeline, which falls squarely within federal jurisdiction for approval.

“The bottom line is they don’t have a legal case to stop it,” said Jocelyn Stacey, an assistant professor in environmental law at UBC’s Allard School of Law in a previous interview, “but the province can make things very messy.”

Eby said B.C. won’t unduly delay permitting for the Trans Mountain expansion project, but the province appears willing to test its case with respect to Aboriginal consultation and its promise to fully adopt the United Nations Declaration of Rights for Indigenous People.

Heyman said government also plans to review its policies on Aboriginal consultation, which will “clarify government policy for decision-makers as they evaluate future permits and work plans.”

Heyman doubts Kinder Morgan will be able to start construction on its September timeline because the company has only received provincial approval for three of eight environmental management plans that it needs to fulfil a condition of its provincial environmental assessment certificate.

“Five (plans) have not been accepted, according to the Environmental Assessment Office, because they have not met the test of consultation with First Nations,” Heyman said. “So until those plans are complete, with the exception of private lands and some clearing of right-of-way, they cannot put a shovel in the ground (on public lands).”

Kinder Morgan, however, said that while it is carefully reviewing the province’s statements it is moving forward with construction activities in September.

The company did not make anyone available to answer questions Thursday, but in an emailed statement, president Ian Anderson said Kinder Morgan staff are “are committed to working with the province and permitting authorities in our ongoing process of seeking and obtaining necessary permits and permissions.”

“We have undertaken thorough, extensive and meaningful consultations with Aboriginal peoples, communities and individuals and remain dedicated to those efforts and relationships,” Anderson said, characterizing the project’s review as an unprecedented level of scrutiny.

Kinder Morgan’s $7.4 billion Trans Mountain pipeline expansion, which involves twinning its 1,100 km pipeline from near Edmonton to Burnaby, would triple its capacity to carry 890,000 barrels per day of oil and promises to create some 15,000 jobs.

On Thursday, industry groups criticized B.C. for putting the economic boost at risk.

“The outcome of a new round of expensive and lengthy delays will be no different and the only losers will be B.C. taxpayers and thousands of Canadians who will have to wait even longer for an opportunity to work,” said Mark Scholz, president of the Canadian Association of Oilwell Drilling Contractors.

Eby and Heyman did not disclose what the province’s efforts will cost or what Berger will be paid as an adviser.

Environmental groups in B.C. praised Eby and Heyman’s announcement as a good first effort to fulfilling the NDP and Green party’s power-sharing pledge to “use every tool at our disposal” to “defend B.C.’s interests.”

“This is a prudent and wise move that I think will provide for some critical actions down the line,” said Eugene Kung, staff counsel for West Coast Environmental Law, who co-authored a legal “tool box” of tactics that had the strongest chance of succeeding.

Sven Biggs, climate campaigner for the group, said the announcement sends “a strong message that corporations seeking to build these projects need the consent of First Nations before they proceed.”

As an independent observer, UBC academic George Hoberg said appointing Berger as an external adviser sent a strong signal in itself.

“He chaired the Mackenzie Valley Pipeline Commission,” said Hoberg, “and that inquiry essentially established modern Canadian norms for environmental assessment and Aboriginal rights.”

Publication Date: 
Thursday, August 10, 2017