Author: Derrick Penner
Media Outlet: Vancouver Sun
The province has set out its initial steps to “protect B.C.’s interests” with respect to Kinder Morgan’s $7.4 billion Trans Mountain pipeline expansion project, but has so far declined to say how much it expects that effort to cost.
Attorney General David Eby has declined to say how much taxpayers are paying external legal counsel, Thomas Berger, to offer his advice on the province’s legal options, citing lawyer-client privacy.
“The arrangements with Mr. Berger are privileged as their release would reveal details on government’s proposed course of legal action in relation to Trans Mountain,” Eby said in brief emailed statement in response to Postmedia’s request for information.
He added that “(costs) for external counsel will be disclosed at fiscal year end.”
Eby and Environment Minister George Heyman last Thursday revealed that government had retained Berger — one of Canada’s preeminent minds on First Nations law — to advise it on options to seek intervener status in the Federal Court case in which 21 other parties are challenging the federal approval of the project following what they argue was a flawed National Energy Board review process.
Berger is also taking over the province’s representation in a B.C. Supreme Court lawsuit launched by the Squamish First Nation that argues its people weren’t consulted adequately in relation to the provincial environmental certificate issued by the previous government in January.
Heyman acknowledged last Thursday that federal approval of the cross-province pipeline makes the government’s position challenging and that government has to tread carefully with respect to the file.
Since taking office, Heyman, Premier John Horgan and other ministers have toned down their rhetoric about “(employing) every tool available to the new government to stop” the Trans Mountain expansion, rephrasing it as “every tool available to defend B.C.’s interests.”
Heyman said government can’t unduly delay the issue of permits to Kinder Morgan for the project, but government will make sure permit applications meet constitutional requirements for adequate consultation with First Nations.
Consultation isn’t a simple task, said Eugene Kung, staff counsel with West Coast Environmental Law, who argued that the costs of the steps the province is taking now should be weighed against the risks of a potential oil spill or in losing a case on the question of Aboriginal rights.
“(Consultation) often gets framed around blocking or delaying,” Kung said. “It’s also an opportunity in getting certainty to move forward (with projects).”
There are also risks in being seen to treat one project differently than others, said lawyer Robin Junger, a partner in the firm McMillan LLP and co-chairman of the firm’s Aboriginal and environmental law committees.
“Any government discharging its duties has to be mindful of the rule of law and fairness,” Junger said.
“It’s not open to any government to apply a different standard beyond the standard that the Supreme Court has set out,” Junger said. “And the standard that’s to be applied and the duty to consult shouldn’t be affected by whether a government supports or opposes a project.”