Province seeks ways to fight Kinder Morgan’s pipeline plan
British Columbia’s newly installed government plans to oppose Kinder Morgan’s $7.4-billion Trans Mountain pipeline expansion project.
However, the government’s strategy will not involve artificially delaying the issue of provincial permits for the project.
On Wednesday, Environment Minister George Heyman reiterated the government’s promise to “use every tool available” in the fight, but acknowledged that the federal government has already approved the project.
Heyman said the government will evaluate provincial permit applications and construction plans for the project “in an appropriate and fair manner.”
“(However) we will certainly be taking our commitment very seriously and we will have a very high test for environmental protection as well as a very high test for consultations with First Nations,” said Heyman, adding the government is getting legal advice on the matter.
The Trans Mountain expansion involves twinning the existing pipeline from Edmonton to Vancouver, nearly tripling its capacity to 890,000 barrels per day. This will lead to potentially a seven-fold increase in tanker traffic through Vancouver harbour.
According to West Coast Environmental Law Association’s “Legal Toolbox to Defend B.C.” the new government could review the record of consultation by the previous government to determine whether it was adequate to meet the requirements of the United Nations Declaration for the Rights of Indigenous People, which government has committed to abide by.
“There’s clearly an opportunity there,” said association lawyer Eugene Kung.
In doing so, the province could revisit a legal challenge of the Trans Mountain expansion by the Squamish First Nation that is now in court and issue new instructions to the Crown on the basis that government’s constitutional requirement to consult and accommodate First Nations was not met. This could result in a court order setting aside the provincial environmental certificate already issued.
Federal cabinet has the authority under the Environmental Assessment Act to vary one or more provisions “in respect of a specified reviewable project,” if there are circumstances that warrant variation “in the public interest.”
For the Trans Mountain expansion, this might mean shortening the expiry dates for certain permits or making others stricter.
Kung said that for many, the National Energy Board approval process was “not really accepted to be a thorough process,” and left a lot of interested parties with unresolved concerns about the project.
Kung said that after permits have been altered or expired, government could develop further processes to be met before permits are issued. That could include new legislation requiring full assessments of the project’s impacts on health, safety and drinking water.
“That would be very interesting and would fall squarely in provincial jurisdiction,” said Jocelyn Stacey, an assistant professor who teaches environmental law in the Allard School of Law at the UBC.