B.C. joins legal fight against pipeline
Constitutional expert says province has weak case but can make construction efforts ‘very messy’
The B.C. NDP government has begun efforts to “defend British Columbia’s interests” against Kinder Morgan’s Trans Mountain pipeline expansion by joining the legal fight against the federally approved project and hiring high-powered legal advice.
“We know with the federal government’s approval of this project that this will be a challenge,” said Environment and Climate Change Minister George Heyman on Thursday.
“But we’ve committed to stepping up and fighting for B.C.’s interests,” they added.
Heyman and Attorney General David Eby signalled that B.C.’s case will lean heavily on the adequacy of consultations with First Nations with respect to cases that are before the courts and steps in the environmental assessment process that are already underway.
The ministers said that B.C. has enlisted as an external adviser Thomas Berger, a lawyer with a long history in First Nations law including arguing the Calder case that helped establish the concept of Aboriginal title.
“(Berger) is a living example of First Nations law in Canada,” Eby said, “and we think his presence will signal a couple of things,” including the new government’s commitment to adequately consult Indigenous communities.
Eby said Berger will also take over the defence of the lawsuit that the Squamish First Nation has filed against B.C., arguing that it was not adequately consulted in the provincial environmental review.
Green party leader Andrew Weaver praised the government’s announcement as a “key commitment in our Confidence and Supply Agreement.”
However, from a provincial perspective constitutional legal experts have said B.C. has a weak case for stopping a border-crossing pipeline, which falls squarely within federal jurisdiction for approval.
“The bottom line is they don’t have a legal case to stop it,” said Jocelyn Stacey, an assistant professor in environmental law at UBC’s Allard School of Law in a previous interview, “but the province can make things very messy.”
Eby said B.C. won’t unduly delay permitting for the Trans Mountain expansion project, but the province appears willing to test its case with respect to Aboriginal consultation and its promise to fully adopt the United Nations Declaration of Rights for Indigenous People.
Heyman said government also plans to review its policies on Aboriginal consultation, which will “clarify government policy for decision-makers as they evaluate future permits and work plans.”
Heyman doubts Kinder Morgan will be able to start construction on its September timeline because the company has only received provincial approval for three of eight environmental management plans that it needs to fulfil a condition of its provincial environmental assessment certificate.
“Five (plans) have not been accepted, according to the Environmental Assessment Office, because they have not met the test of consultation with First Nations,” Heyman said.
“So until those plans are complete, with the exception of private lands and some clearing of right-of-way, they cannot put a shovel in the ground (on public lands).”
Kinder Morgan, however, said that while it is carefully reviewing the province’s statements it is moving forward with construction activities in September.
The company did not make anyone available to answer questions Thursday, but in an emailed statement, president Ian Anderson said Kinder Morgan staff are “are committed to working with the province and permitting authorities in our ongoing process of seeking and obtaining necessary permits and permissions.”
“We have undertaken thorough, extensive and meaningful consultations with Aboriginal peoples, communities and individuals and remain dedicated to those efforts and relationships,” Anderson said, characterizing the project’s review as an unprecedented level of scrutiny.
Kinder Morgan’s $7.4 billion Trans Mountain pipeline expansion, which involves twinning its 1,100 km pipeline from near Edmonton to Burnaby, would triple its capacity to carry 890,000 barrels per day of oil and promises to create some 15,000 jobs.
On Thursday, industry groups criticized B.C. for putting the economic boost at risk.
“The outcome of a new round of expensive and lengthy delays will be no different and the only losers will be B.C. taxpayers and thousands of Canadians who will have to wait even longer for an opportunity to work,” said Mark Scholz, president of the Canadian Association of Oilwell Drilling Contractors.