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BC’s legal steps on Kinder Morgan show commitment to address Indigenous concerns

Thursday, August 10, 2017

VANCOUVER, BC, Coast Salish Territories – The BC government has revealed a series of steps aimed at defending the coast and communities from the Kinder Morgan pipeline and tanker project, with a focus on ensuring that the Province meets its constitutional obligations to consult and accommodate Indigenous peoples.

In an announcement today, BC Environment Minister George Heyman and Attorney General David Eby announced the hiring of an independent lawyer to act as special counsel for the Province in its legal efforts. They also confirmed that it would be illegal for Trans Mountain to proceed with construction on public land at this time, because it has not yet met existing conditions on its BC environmental assessment certificate related to Indigenous consultation.

“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,” said Jessica Clogg, Executive Director and Senior Counsel at West Coast Environmental Law Association. “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.”

The new special counsel, Thomas Berger Q.C., is a well-known and respected lawyer in BC, with particular expertise regarding the relationship between governments and Indigenous peoples. 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.

“The National Energy Board review process was fatally flawed, and it didn’t address some key concerns for BC – such as protecting public health and safe drinking water. Since BC’s approvals were built on that faulty foundation, the reasonable thing for the new government to do is take steps to fulfil its obligations and protect these interests,” said Eugene Kung, Staff Counsel.

The government’s actions follow public commitments to “employ every tool available” to defend BC’s interests from Trans Mountain. In a recent publication, West Coast set out legal approaches that BC could use to protect the interests of British Columbians from this risky project.

There are currently 19 legal challenges against the project, which allege that the federal and provincial decisions to approve Trans Mountain were made unconstitutionally. Any of these legal challenges could result in the federal and/or provincial approvals being set aside.


For more information, please contact:

Eugene Kung | Staff Counsel

Additional resources:

A Legal Toolbox to Defend BC from the Kinder Morgan Trans Mountain Pipeline & Tankers Project