Author: Henry Lazenby
Media Outlet: Mining Weekly
The newly installed coalition government of British Columbia has outlined its plans to stop an expansion of the Kinder Morgan oil pipelinethat transports Alberta crude oil to Vancouver, on Canada's West Coast.
Last year, the federal government, under Prime Minister Justin Trudeau, approved Kinder Morgan’s C$7.4-billion Trans Mountain Expansion project, which will match the existing 1953-built Trans Mountain pipeline systembetween Edmonton, Alberta, and Burnaby, British Columbia. This is expected to triple Canada’s access to new crude markets, as the country looks to diversify oil exports away from the US, its largest customer.
The Trans Mountain Expansion project has undergone an unprecedented level of scrutiny and review and is subject to 157 conditions from the National Energy Board and 37 conditions attached to the environmental certificate received early in January from the previous Liberal-led government of British Columbia.
“Our government made it clear that a seven-fold increase in heavy oil tankers in the Vancouver harbour is not in British Columbia's best interests. Not for our economy, our environment, or for thousands of existing jobs. We will use all available tools to protect our coastal waters and our province's future,” stated Environment and Climate Change Strategy Minister George Heyman on Thursday.
The provincial government was formed under a cooperation agreement between the New Democratic Party (NDP) and the Green Party of British Columbia, after elections held in May failed to deliver majority representation to the British Columbia Liberal Party, which won the most seats in the provincial legislative assembly.
Government announced that it had retained Thomas Berger (QC, OC, OBC) as external counsel to government in the legal actions related to the pipeline expansion project. He will be taking over as lead counsel in the province’s response to the court challenge brought by the Squamish Nation over the provincial approval of the project, and will advise the province on efforts to intervene in legal hearings surrounding the federal government’s approval of Trans Mountain.
There are currently 19 legal challenges against the project, which allege that the federal and provincial decisions to approve Trans Mountain were made unconstitutionally.
“We are committed to fighting for British Columbia’s interests and it is government’s desire to seek intervenor status in legal challenges [facing] federal approval of the pipeline expansion and increased oil tanker traffic off British Columbia's coast. 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,” noted attorney general David Eby.
The province also vowed to fulfil its duty of meaningful consultation with indigenous people concerning this project, including consultations regarding potential impacts to Aboriginal rights and title – a responsibility that has been identified in several court cases, government stated.
That duty must be fulfilled as it relates to environmental assessment certificate requirements. Until these consultations are completed in a way that meets the province’s legal obligations, work on the project on public lands cannot proceed.
“Going forward, we will be reviewing policies to outline how our government expects to further meet our commitments to First Nations, as well as to all British Columbians with regard to defending our air, land and water. This policy review will clarify government policy for decision-makers as they evaluate future permits and work plans,” said Heyman.
Kinder Morgan responded on Thursday, saying that it takes seriously the comments from the province of British Columbia and will be carefully reviewing its statements and the steps outlined. “Trans Mountain remains ready and willing to meet with the government to work through their concerns and the issues raised by them today,” the company said in a statement.
“We 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 as we move forward with construction activities in September,” said Kinder Morgan Canada president Ian Anderson.
The project, which involves twinning the existing 1 100 km pipeline from near Edmonton to Burnaby, would triple its capacity to carry 890 000 bbl/d of oil and could create some 15 000 jobs.
The British Columbia Liberal Party was quick to ramp up the rhetoric regarding the sitting provincial government's opposition to the expansion project, posting a brief statement to social media.
"By pulling out all the stops to strangle this major investment, the NDP are sending a message around the world that BC is closed for business. It's working British Columbians, their families and our public services that will pay the price for this reckless agenda," the political party said.
The Canadian Association of Oilwell Drilling Contractors (CAODC) also condemned the provincial government’s decision to take legal action to halt the Kinder Morgan Trans Mountain expansion pipeline project.
The CAODC argued that Canadian case law has made it "abundantly clear" that provinces cannot exercise their jurisdiction in ways that interfere with interprovincial transportation, including pipelines. "The final decision in this case explicitly resides with the federal government per the constitutional doctrine of paramountcy, and the approval has already been given to Kinder Morgan to proceed," it said in a statement.
“The outcome of a new round of expensive and lengthy delays will be no different, and the only losers will be BC taxpayers, and thousands of Canadians who will have to wait even longer for an opportunity to work,” said CAODC president Mark Scholz.
“Capital flight from Canada’s energy industry, made evident most recently by the decision by Petronas to abandon the Pacific Northwest LNG project in British Columbia, is a direct result of the obstructionist attitude that some provincial and municipal governments have taken toward energy infrastructure projects. Canada’s future prosperity depends upon these projects being completed, and it is not the place of the British Columbia government, nor any other provincial or municipal body, to hinder our collective progress as a nation."
Environmentalists, however, praised the move.
“The provincial government is absolutely doing the right thing – legally, morally and constitutionally – by taking a sober second look at the project and steps it can take to protect BC communities and indigenous peoples. This is beyond politics. There were serious legal flaws in the way this project was approved, and any objective review should bring out those flaws and the actions needed to rectify them," stated West Coast Environmental Law Association executive director and senior counsel Jessica Clogg.
The organisation recently published a legal 'tool box' of strategies that will have the strongest chance of succeeding against the expansion project.