Author: Mike Hager
Media Outlet: Globe and Mail
B.C.’s Environment Minister says it would be illegal for the province to delay the permits needed by Kinder Morgan Canada Ltd. to start the Trans Mountain pipeline expansion in September, but it will subject any work on the $7.4-billion project to the highest environmental standards and the United Nations Declaration on the Rights of Indigenous Peoples.
On Wednesday, George Heyman reiterated comments made by Premier John Horgan a day before that the new BC NDP government continues to review whether it has grounds to block the controversial pipeline project that faces legal challenges from First Nations and opposition from Vancouver-area municipalities.
Ottawa and the previous BC Liberal government’s approval of the project means blocking it “is challenging for us,” Mr. Heyman said. But the provincial government is within its rights to make sure any new work by the company is in accordance with the respect due First Nations under UNDRIP, which experts have warned has vague language that fails to address the unique complexities of Canada’s Indigenous governance.
“Once a permit has been granted – and a number already have – the company has to come forward with a work plan and we need to be convinced that that work plan meets high environmental standards and had a high test for the level of First Nations consultation,” Mr. Heyman said.
Mr. Heyman left his position as executive director of the Sierra Club BC to get elected in 2013.
“There’s no point trying to exercise authority that we don’t have [in refusing to issue permits] because that is capricious, exceeding our jurisdiction and, ultimately, that won’t be effective.”
In reaching an agreement with the Green Party to back his minority government, the NDP Premier vowed to use “every tool available” to stop the project. However, in a mandate letter Mr. Horgan provided to Mr. Heyman and released this week, the Premier softened that language, saying the government should “employ every tool to defend B.C. interests” in face of the Kinder Morgan expansion.
Last week, Kinder Morgan Canada’s chief executive officer Ian Anderson said the company is on track to begin work on the project in September, but noted it still needs a number of provincial construction permits. A company spokesperson did not respond to a request for comment late Wednesday.
Mr. Horgan’s New Democrats won May’s election promising to embrace UNDRIP, but former premier Christy Clark and her Liberals said the document has some “really problematic … clauses that would seem to suggest that First Nations could have an absolute veto over resource development on any of their territories.”
Last fall, Perry Bellegarde, National Chief of the Assembly of First Nations, warned that B.C.’s adoption of the international declaration would create more conflict for “half-built” projects like Kinder Morgan’s ongoing expansion.
The New Democrats could also challenge the constitutionality of the previous Liberal government’s approval of the project because they could argue it did not meet the province’s duty to engage Indigenous people, according to Eugene Kung, a lawyer with Vancouver-based West Coast Environmental Law Association.
That lack of consent is evidenced by the 19 active court cases involving the Trans Mountain project, said Mr. Kung, whose small organization is working with the local Tsleil-Waututh First Nation to block the pipeline.
“There’s no shortage of First Nations here in B.C. who are opposed and are of the view that the consultation has been inadequate,” he said. “Both the federal and provincial governments relied on the National Energy Board process – it was lacking and the concerns raised by a number of intervenors were not adequately addressed.”
Paul Cassidy, an environmental lawyer at Fasken Martineau, said that if the government uses its permitting system to block the Kinder Morgan expansion, it would be contrary to the rule of law because of the NDP’s stated goal of stopping the controversial project.