Kinder Morgan: Is the law really on its side?

Author(s): Supryia Tandan 

Media Outlet: CBA National 

Politics will surely intervene in determining whether the Trans Mountain Kinder Morgan pipeline expansion project goes ahead.  It’s still unclear how things will get resolved in the BC legislature with possible challenges ahead surrounding the election of a new Speaker, and there’s even a chance the province could hold a new election.

But if the NDP and Green Party do succeed in forming an alliance to create a stable minority government, what happens to the Kinder Morgan the pipeline expansion project? The NDP and Green Party agreement includes a statement of shared interest in halting the project.

Can they do so legally?

Alberta Premier Rachel Notley has stated that there is little British Columbia can do to stop a project that is to the benefit of all Canadians. “It's our view that there are no tools available for a province to overturn or otherwise block a federal government decision to approve a project that is in the larger national interest, if there were such tools, Canada would be less a country and more a combination of individual fiefdoms, fighting with each other for advantage,” she has said. Prime Minister Justin Trudeau has said he stands by the federal government's approval of the project.

Backing up Notley’s claim to some degree is Eric Adams, an associate professor of law at the University of Alberta. He cites section 92 of the Constitution Act, which gives the federal government jurisdiction over pipelines, and the power to declare it to the “general advantage of Canada”.

Even so, Chris Tollefson, a University of Victoria environmental law professor says an NDP minority government could require a new environmental assessment by rescinding the environmental certificate issued by Clarke’s government. It could decide that Kinder Morgan did not meet one of the 37 conditions attached to that certificate or it could delay the construction and operation of the pipeline by making the permitting process particularly onerous.

There are also many other challenges to the expansion project. The most notable is a consolidated case in which First Nation communities and BC municipalities are asking for a judicial review of the federal government Order which approved the project.  The West Coast Environmental Law Centre drew this conclusion in a legal brief on the risk associated on the projected:

The 19 separate legal challenges filed against the Project by First Nations, municipalities, and organizations create significant uncertainty regarding its ultimate viability. More than half of the pipeline route is disputed by parties claiming procedural, statutory, and constitutional breaches on the part of the Federal and Provincial governments, the NEB, and Trans Mountain. Many First Nations have asserted Aboriginal title over the land through which the proposed pipeline will run. Leading case law holds that where Aboriginal title is claimed, not only is the government required to seek consent of the First Nation asserting the claim, but that any project on claimed land may be halted if Aboriginal title is recognized by a court. Furthermore, this Project is being rejected by the terminus municipality whose cooperation is essential to allow the diluted bitumen to be transferred onto tankers and shipped

In our opinion, the leading jurisprudence suggests that the Project will not get built, and certainly on the schedule that Kinder Morgan is suggesting”

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