THIS IS POLITICAL, ECONOMIC, UNDILUTED DISASTER.
Trans Mountain rebuff comes at worst time
Disaster. Political, economic, even constitutional. Undiluted disaster.
After winning 17 straight court rulings, the TransMountain pipeline loses the big one, and the whole deal is suddenly legally void.
And this happened Thursday, at the very moment Kinder Morgan shareholders were voting to dump the project on the Canadian taxpayer, in return for $4.5 billion.
A Federal Court of Appeal panel of three judges rejected the project thunderously, but also said the problems can be rectified fairly quickly.
Are they joking? It took them nearly a year to reach a decision with dire consequences for the Canadian economy and even national unity. The timing of the release could not have been worse.
A Supreme Court challenge to the ruling, or the necessary further consultation with First Nations, will not be quickly resolved, if those efforts can succeed at all or escape further challenge.
The project now has no valid permit or cabinet approval. That means any effort to keep building can be stopped by a court injunction.
“I don’t think construction can occur now,” says Nigel Bankes, chair of natural resources law at University of Calgary. “The approval has been quashed.”
The Notley government has been trumpeting the ramp-up to full construction. Premier Rachel Notley appears at staging points for photo ops. Now this pipeline could become a hideously expensive white elephant.
The presumption was that Federal Court approval, based on the failure of many earlier legal challenges, was a sure thing. On that basis, the Alberta NDP committed up to $2 billion in backstop investment.
The rejection is poisonous for any NDP chances for reelection. Jason Kenney and the UCP, as well as the federal Conservatives, will be savagely critical, and they have a point.
In retrospect, the crucial error may have been the Trudeau government’s decision to drop the Northern Gateway project after a similar court rejection. That left one alternative — a pipeline terminal in a densely populated Lower Mainland area where serious resistance was inevitable. The court made a big deal about how many people are potentially affected.
Now, the consequences for the Trudeau government are clear and dangerous. This was the signpost project — the federal statement that Canada can secure new energy markets and national works can be built.
And it’s stopped cold, with no alternatives, at the very moment Trump’s America is making it obvious that Canada desperately needs a truly national economy.
The panel judges had two main reasons — inadequate consultation with First Nations, and the refusal to consider maritime shipping as part of the approval process.
“The (National Energy) Board made one critical error,” the ruling said. “The Board unjustifiably defined the scope of the Project under review not to include Project-related tanker traffic.
“The unjustified exclusion of marine shipping from the scope of the Project led to successive, unacceptable deficiencies in the Board’s report and recommendations.”
The irony in this is both bitter and brutal.
Ottawa is already dishing out the $1.5 billion it promised to improve coastal spill protection, as part of the pipeline agreement.
On holiday in Nanaimo recently, I counted seven vessels in the harbour bearing a big “Spill Response” logo.
Nanaimo is the main base for the Vancouver Island spill response. Ottawa has released $150 million, including $10 million for construction of a headquarters building. In total, the feds will spend $1.5 billion.
The Island effort includes secondary bases in Sidney, Beecher Bay and Port Alberni. There will be two major bases on the Lower Mainland, all with a total of 40 new vessels.
All this is new and federally funded. By the time it’s all done, B.C.’s coastal waters will almost certainly have the best spill response system on the planet.
All in return for a pipeline that is now officially invalid.
People in B.C.’s interior, meanwhile, are deeply concerned by the escalating volume of oil shipment by rail. On our travels we saw dozens of trains with hundreds of tanker cars. This is the true spill danger in the making.
Both Notley’s office and the PMO have been nervous about the ruling for months, given the extraordinary delays. Nonetheless, the worst they expected was a divided court with one judge dissenting.
But this? Flat rejection on two separate grounds — consultation and marine concerns — either one of which would have killed the approval?
Nothing in an unbroken string of earlier court rulings gave hint of this. It’s a selfdestructive fiasco of a purely Canadian kind.
IT’S QUITE A SLAP TO THE GOVERNMENT BY THE COURT ON THE GROUNDS OF RECONCILIATION WITH FIRST NATIONS. THEY’VE COMMITTED BILLIONS OF DOLLARS IN TAXPAYERS’ FUNDS DOUBLING DOWN ON A PROJECT THAT THE COURTS HAVE JUST QUASHED. — KATHRYN HARRISON, UBC PROFESSOR
THE (NATIONAL ENERGY) BOARD MADE ONE CRITICAL ERROR.