Legal magic hid impact on orcas

Abaffling, legalistic magic trick accounts for most of the fallout from the Federal Court of Appeal decision that sidelined the Trans Mountain pipeline expansion project.

The National Energy Board dwelled at length on the marine impacts the pipeline would have on southern resident killer whales.

Then it made the entire orca pod disappear, for the purposes of its review and report to the federal cabinet.

That stunt has now bounced back to the public’s attention, and it’s going to take a while to figure out the ramifications.

The court rejected the federal government’s acceptance of the NEB’s pipeline report for two reasons. One part of the lengthy Indigenous consultation process was flawed, and the pipeline expansion’s marine-traffic impacts weren’t properly considered.

Much of the post-decision argument has been about the second finding, leaving the understandable impression that the authorities didn’t consider the marine impacts.

But that’s incorrect. The NEB devoted several chapters to exactly that topic. There’s even a picture on an orca on the front page of the report.

It’s the way they did it that is now belatedly getting a lot of attention. The NEB panel considered marine impacts under the general provisions of the act that governs the board, but not as a specific part of the pipeline project.

It concluded the pipeline expansion would have serious impacts on the southern resident pod. But because it was a general finding and wasn’t made within the scope of the project, that finding wasn’t a stopper for the project itself.

The NEB green-lighted the project to the federal cabinet, which approved it two years ago.

The court unpacked all the reasoning behind those decisions and found them wanting.

The judges said the NEB found underwater noise would be a problem, and there was a potential for collisions with whales.

There was no way to mitigate those risks, let alone the impact of a spill.

The verdict points out that the NEB concluded the southern resident killer whale population is reduced to the point where any impact is significant, and any and all traffic increases would have an effect.

Its conclusion on that topic was that increased tanker traffic arising from the pipeline would have “significant adverse effects” on the whales. That’s where the magic trick happened. The court found that the NEB report adequately informed the cabinet about the marine impacts, and that there was no way to fully mitigate them.

But the verdict said perhaps most the important factor was that the NEB informed the cabinet that it was not including marine-shipping impacts in the scope of the pipeline project.

That allowed the board “to conclude that, as it defined the project, the project was not likely to cause significant adverse effects.”

That conclusion reversed the entire thrust of the earlier work.

Essentially, the findings were that more tankers serving the expanded pipeline would threaten the whales. But tankers were deemed to be outside the project’s scope. Therefore, the project would have no adverse effects.

It’s a Catch-22. As a measure of how confusing it is, Green Party Leader Andrew Weaver called the failure to consider marine-shipping impacts an outrageous omission at the same time he noted that the NEB had cited the threat to the orcas.

The key result of the manoeuvre was the Species at Risk Act didn’t come into play legally.

The court had problems with that, and also with how cabinet handled the deficient report.

The NEB made that distinction five years ago and proceeded on that basis. Now it’s turned into one of the prime considerations and has sidelined the project, at least for a while.

There is an avenue around the court’s objections. An appeal is inevitable. And even while dismantling the process, the court suggested some workarounds.

After ruling the Indigenous consultation was inadequate, it suggested a prompt reconsideration of one key phase could solve that problem.

And on the marine-impacts side of the decision, it also had some ideas.

It’s still a struggle to understand how a 500-plus-page report that delved at length into the tanker-traffic implications of a new pipeline could be thrown out because it considered them in the wrong context.