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How intervener status for B.C. could impact the Trans Mountain pipeline legal challenge

Author: Andrea Woo

Media Outlet: Globe and Mail

B.C.’s attempted involvement in a Federal Court of Appeal hearing on Trans Mountain pipeline expansion seen as ‘win-win’ for the province. 

British Columbia’s NDP government is seeking intervener status in a legal challenge to Kinder Morgan’s Trans Mountain pipeline expansion, expected to be heard in the Federal Court of Appeal this fall. Here is a look at the case and what it could mean for the $7.4-billion project.

What’s the Federal Court of Appeal case about?

There are 19 separate lawsuits from First Nations, municipalities and environmental groups challenging the National Energy Board’s (NEB) review process, the federal government’s consultations and the extent of provincial reviews. They have been combined into a single case that is expected to be heard in October.

The Federal Court of Appeal has already granted the Alberta government intervenerstatus. That province’s NDP government – which is adamant that B.C. has no power to interfere with the federal approval process – will argue that the pipeline expansion is in the public interest.

“New pipelines mean a brighter future for our oil and gas industry, with jobs and opportunities for tens of thousands of working families and billions of dollars in new investment,” Alberta Premier Rachel Notley said at the time.

What’s the impact of the B.C. government joining the case?

If B.C. is granted intervener status, it is expected to make the case about the project’s high environmental risks and the inadequacy of consultations with First Nations, said Eugene Kung, a lawyer with West Coast Environmental Law.

The province’s involvement could also bolster the B.C. First Nations’ cases. B.C. First Nations already have a strong track record – much of Canada’s leading case law on aboriginal title originated in B.C. – and having the province and its resources onside would be a plus.

B.C.’s participation “is certainly a reasonable thing,” Mr. Kung said, “since the Province of Alberta has intervened as well and the court should want to hear a range of perspectives.”

However, Martin Olszynski, a law professor at the University of Calgary, said it’s not a forgone conclusion that B.C. will secure intervener status. It is late in the game and other parties would likely argue that it is prejudicial to bring B.C. in now.

But either way, Prof. Olszynski said, it’s a win-win for B.C.: “They can say, ‘Look, we hired this amazing counsel, we’re going to take this to court, we’re going to fight for B.C.’ Win or lose, they can say they took that stance.”

What are the legal issues in the case?

The big one is whether consultations with First Nations were adequate. Chief Maureen Thomas of the Tsleil-Waututh Nation, for example, said the “disappointingly flawed” federal consultation understated oil-spill risks and health impacts.

Mr. Kung said the federal government has in recent years shifted its goal from procedural consultations toward consent. However, recent Supreme Court of Canada cases have also started to “unveil what the floor of minimal consultation is.”

“My expectation, and our expectation, should be that the government’s conduct in relation to First Nations communities should not be shooting for the bare legal minimum, but should be trying to achieve more than that,” Mr. Kung said. “If consent is obtained, that is the most certain way to move forward and the Supreme Court of Canada has said that very clearly.”

Then there is the issue of environmental risk. B.C. entered into an agreement with the NEB to conduct its environmental assessment and didn’t file any legal action when the board – or the federal government – approved it. B.C. hasn’t revoked its certificate.

“Of course, that was all under the previous government,” Prof. Olszynski said. “But from the court’s perspective, all of that is bound to have some effect on the scope of arguments that B.C. is going to be able to make, if it’s granted intervener status.”

Can this case actually kill the pipeline expansion?

Maybe. Just last year, the Federal Court of Appeal overturned Ottawa’s approval of Enbridge’s Northern Gateway pipeline project, under similar circumstances. The federal cabinet had granted a permit two years earlier.

The three-justice panel concluded the former Conservative government failed in its duty to consult First Nations prior to issuing a cabinet order approving the $7.9-billion pipeline that would deliver 525,000 barrels a day of oil sands crude to the West Coast for export to Pacific markets.

“It’s not necessarily a speculative thing: We have a clear example in recent memory with fairly similar facts,” Mr. Kung said.

“Of course, it will fall on the specific merits and facts of this case, but I can tell you as someone who was following both very closely that the NEB process in particular on which both the federal and provincial decisions were made, was fatally flawed – even worse than the process in Enbridge. And we know what happened there.”

Anything else?

Lawyer Thomas Berger, whom the province hired to lead its legal charge against the project, will also take 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.

Democracy Watch and the Pipe Up IPE UP Network also applied to the B.C. Supreme Court for an order quashing the approval, arguing that hundreds of thousands of dollars in donations from Kinder Morgan and other companies connected to the pipeline sector to the BC Liberal Party created an apparent conflict of interest.
With a report from Jeff Jones in Calgary

Key dates in the history of the Trans Mountain pipeline

October, 1953: The Trans Mountain pipeline begins shipping oil with an initial capacity of 150,000 barrels a day (b/d). The project features four pump stations along its 1,150-kilometre route and a marine dock that connects loading facilities on the east side of Edmonton with ocean tankers in Burnaby, B.C.

1957: Pipeline capacity is expanded via the construction of a 160-km pipeline loop. The Westridge Marine Terminal is built and commissioned in Burnaby.

Jan. 14, 1985: Trans Mountain’s biggest spill occurs at a tank farm in the Edmonton area. Nearly 10,000 barrels of oil are released.

2006-2008: The Anchor Loop project adds 160 km of pipeline through Jasper National Park and Mount Robson Provincial Park between Hinton, Alta., and Hargreaves, B.C. The extension includes 13 new pump stations and modifications to existing stations, increasing capacity from 260,000 b/d to 300,000 b/d.

Feb. 21, 2012: Kinder Morgan says it wants to expand Trans Mountain after receiving support from oil shippers and will begin public consultations.

Dec. 16, 2013: An application is made to the National Energy Board (NEB) to expand the Trans Mountain pipeline. Construction is proposed to begin in 2017, with the aim of having oil flow through the expansion by December, 2019.

November, 2014: More than 100 people are arrested after they camp out in a conservation area on Burnaby Mountain, east of Vancouver, to block crews from conducting drilling and survey work related to the pipeline expansion. Most of the charges are later dropped.

August, 2015: The NEB postpones public hearings after striking from the record economic evidence prepared by a Kinder Morgan consultant who was to begin working for the regulator.

Jan. 12, 2016: Alberta Premier Rachel Notley says in a written submission to the NEB that the Trans Mountain pipeline expansion is in the best interests of both Alberta and Canada.

Jan. 27, 2016: The federal Liberal government says pipeline projects such as the Trans Mountain expansion will now be assessed in part on the greenhouse gas emissions produced in the extraction and processing of the oil they carry. Proponents will also be required to improve consultations with First Nations.

May 17, 2016: Ottawa appoints a three-member panel to conduct an environmental review of the Trans Mountain expansion project.

May 29, 2016: The NEB recommends approval of the pipeline, subject to 157 conditions, concluding that it is in the public interest.

Nov. 29, 2016: Prime Minister Justin Trudeau sanctions the Trans Mountain expansion, part of a sweeping announcement that also saw approval of Enbridge’sLine 3 pipeline replacement but the end of its Northern Gateway project.

Jan. 11, 2017: B.C. Premier Christy Clark announces her support for the project, saying Kinder Morgan has met five government conditions including a revenue-sharing agreement worth up to $1-billion.

May 15, 2017: The Federal Court of Appeal grants Ms. Notley’s government intervenerin a lawsuit filed by municipalities and First Nations against the project.

May 25, 2017: Kinder Morgan makes its final investment decision to proceed with the development, now estimated to cost $7.4-billion, subject to the successful public offering of Kinder Morgan Canada.

May 29, 2017: The BC NDP and Greens agree to form an alliance to topple the Liberal Party, which won a minority government in an election earlier in the month. The opposition parties agree to “immediately employ every tool available” to stop the project.

May 30, 2017: Kinder Morgan Canada debuts on the Toronto Stock Exchange after a $1.75-billion public offering, one of the largest IPOs in the exchange’s history.

June 29, 2017: The BC Liberals lose a no-confidence vote, clearing the way for NDP Leader John Horgan to become premier.

Aug. 10, 2017: The BC NDP government hires former judge Thomas Berger to provide legal advice as it seeks intervener status in the legal challenges against the project filed by municipalities and First Nations.

Publication Date: 
Thursday, August 10, 2017