‘Lopsided’ pipeline approval favoured Alberta: B.C. lawyer
Federal cabinet also failed to detail reasons for Trans Mountain project OK
A lawyer representing British Columbia in its fight against the Trans Mountain pipeline expansion says the federal cabinet’s approval of the project is “lopsided” because it put Alberta’s economic needs ahead of B.C.’s concerns about oil spills.
Thomas Berger said outside the Federal Court of Appeal on Thursday that the $7.4-billion project would disproportionately affect the interests of B.C. residents in a marine spill of diluted bitumen.
While Alberta would get the lion’s share of benefits through development of its oil resources and access to Pacific Rim markets, B.C. would bear the entire environmental risk, he told The Canadian Press in an interview.
In its approval of the project last November, the governor-in-council breached its statutory duty to provide reasons for deciding it was not likely to cause significant adverse environmental effects, Berger said on behalf of the attorney general of B.C., which is an intervener in the case.
“The governor-in-council made its choice but it did not give any reasons. All we got was the conclusion. It’s like getting a judge’s verdict without getting any reasons,” Berger said.
“I urged the court to rule that the cabinet had to obey the command of Parliament, which is the orderin-council must set out the reasons for making the order,” the former B.C. Supreme Court judge said.
“I told the court, ‘This isn’t technical, it’s fundamental,’ ” Berger said.
The federal government’s explanatory note accompanying the order-in-council approving Trans Mountain says detailed reasons for the decision are set out in four reports, including one by the National Energy Board.
“The citizen shouldn’t have to search through hundreds of documents to find out the reason why the cabinet made the choice it did,” Berger said. “That’s why Parliament said cabinet’s reasons must be set out in the order-in-council.”
Alberta, which favours the pipeline project on the grounds it would create jobs and investment opportunities, is scheduled to make its arguments in the Federal Court of Appeal next week.
Several First Nations, two environmental groups and the cities of Vancouver and Burnaby are also against the pipeline expansion that the federal government approved last November.
Indigenous groups have maintained a seven-fold increase in tanker traffic would substantially increase the risks of diluted bitumen spills, with no known means of adequately cleaning it up, and put endangered southern resident killer whales in peril.
First Nations groups also say the federal government failed to adequately consult with them or gain their consent for expanding the pipeline. Trans Mountain, a subsidiary of Kinder Morgan Canada, aims to double an existing Albertato-B.C. pipeline with nearly 1,000 more kilometres of pipeline in new and existing corridors.
British Columbia’s former Liberal government supported the project, saying Kinder Morgan had met five government conditions including a revenue-sharing agreement worth up to $1 billion.
However, the New Democratic government, which formed an alliance with the Green party to support its minority government this year, has said it would oppose the pipeline expansion.
Earlier Thursday, TransCanada announced it had cancelled its plans for the $15.7-billion Energy East pipeline, which was to carry oil from Alberta and Saskatchewan to refineries Quebec and New Brunswick. Last September, the Federal Court of Appeal overturned Ottawa’s approval of Enbridge’s Northern Gateway pipeline project, two years after the federal cabinet granted a permit
The Musqueam First Nation’s decision to pull out of a judicial review process against the federal government will have no effect on ongoing legal efforts to stop the Kinder Morgan pipeline expansion, a Vancouver lawyer involved in the process said Wednesday.
“I don’t think it makes any difference at all,” said Matthew Kirchner, who represents both the Squamish First Nation and Coldwater Indian Band. “It’s a decision the Musqueam have made, for whatever reason, and it doesn’t affect my clients at all.”
Six First Nations, municipalities and environmental groups have been in the Federal Court of Appeal in Vancouver this week in a judicial review of the federal government’s decision to approve Kinder Morgan’s Trans Mountain pipeline expansion from Alberta to Burnaby.
Kirchner said the hope is to set aside federal approval of the pipeline, leading to greater consultation with First Nations and the potential for the National Energy Board to reopen its study of the pipeline project.
He said the Coldwater’s concerns include effects of the pipeline route on a critical aquifer that provides drinking water for band members, while the Squamish argue there is a lack of information on the effects of diluted bitumen in a marine environment.
“The impacts of a spill in Burrard Inlet are not understood,” Kirchner said. “What we do know is that it would be devastating for the Squamish.”
Other First Nations involved in the judicial review are TsleilWaututh in North Vancouver, Sto:lo in the upper Fraser Valley, Upper Nicola at Merritt, and Stk’emlupsemc Te Secwepemc at Kamloops. The last of the First Nations’ legal arguments wrapped up Wednesday.
Also involved are the cities of Burnaby and Vancouver, and two environmental groups, Raincoast Conservation Foundation and Living Oceans Society. The B.C. government is an intervener in support of the legal challenges, while the Alberta government is an intervener in favour of the federal decision to approve the pipeline.
The National Energy Board recommended go-ahead of the Kinder Morgan project in 2016, with conditions. Both the current federal Liberal government and former Liberal provincial government subsequently approved the project.
Musqueam First Nation Chief Wayne Sparrow revealed Tuesday his people will no longer seek a judicial review but would continue to consult with the federal government on a wide range of issues involving the potential effect of all marine traffic on fishing rights.
“In a nutshell, we’d rather try to negotiate,” Sparrow said. “I think we’ll get a lot more by negotiating than litigating.”
Sparrow emphasized that the Musqueam remain opposed to the Kinder Morgan expansion and have received no compensation to discourage them from proceeding with court action.
The Squamish will also be in B.C. Supreme Court next month challenging the B.C. government’s approval of the pipeline. In that case, B.C.’s new NDP government will be arguing in favour of the decision of its predecessor, based on legal opinions.
The $7.4-billion project would triple the capacity of the pipeline and increase tanker traffic off the West Coast sevenfold.