Federal government has made a mess of Trans Mountain

Like a sports team riding an improbable winning streak, the Trans Mountain pipeline’s run of 16 straight legal victories ended in stunning fashion Thursday when the Federal Court of Appeal quashed the federal government’s approval of the project.

The court ruled Ottawa had not fulfilled its duty to consult with First Nations on the multibillion dollar pipeline. Justice Eleanor Dawson found the National Energy Board’s review was so flawed the government shouldn’t have relied on it to approve the expansion.

None of the project’s previous court victories matter now. The court’s decision is as crippling as a sudden-death loss. It means the project is halted indefinitely until the energy regulator and federal government redo consultations with Indigenous groups.

There’s plenty of blame to go around in the epic mishandling of a project of national interest and one that should have been a relatively straightforward slam dunk, the twinning of an existing pipeline in operation since 1953.

The judge wrote “the consultation framework selected by Canada was reasonable and sufficient. If Canada properly executed it, Canada would have discharged its duty to consult.”

That is a damning indictment of the NEB and the government, which apparently did not learn the hard lessons from another court ruling in 2016 that found a previous administration did not adequately consult with First Nations on Enbridge’s Northern Gateway pipeline.

For Trans Mountain, the court also said the scope of the review “unjustifiably” did not include project-related tanker traffic because the NEB argued marine shipping was beyond its regulatory capacity.

This is further evidence of the muddled, confusing and seemingly ever-changing scope that hinders approval for Canadian energy projects. Trans Canada abandoned its Energy East project last year when the NEB abruptly announced it was including downstream emissions of the pipeline in its environmental review.

The repercussions from and costs of this fiasco are far-reaching: a sorely needed pipeline to get Alberta bitumen to tidewater is delayed or killed at considerable economic cost; the amount of oil shipped by environmentally risky rail will continue to rise and industry will surely shun further energy investment in Canada.

Adding insult to injury, Kinder Morgan shareholders voted overwhelmingly minutes after the court decision to approve the sale of the Trans Mountain pipeline and expansion to Canada for $4.5 billion, the resolution of Ottawa’s unorthodox bid to salvage its shaky handling of the file.

Canadians now own an aging pipeline and a zombie project. No congratulations are in order.