New battle lines over a pipeline

The NDP’s election triumph in B.C. was a surprise; its subsequent call for the cancellation of the Trans Mountain pipeline was not. The shifting calculus has big implications for both the project and future federal and interprovincial relations
By Paul Brent

Divided: Prime Minister Justin Trudeau and B.C. Premier John Horgan are dug in on opposite sides of the Trans Mountain issue

In early 2009, former U.S. President Barack Obama famously quipped, “Elections have consequences,” a not-so-subtle insinuation that his team had all the advantages over his opposition thanks to his party’s landslide election victory. Elections, it turns out, have consequences on this side of the border, too, following the British Columbia New Democratic Party’s surprise seizure of political control of the province this past spring.

The province’s NDP, led by John Horgan, eked out a minority government in part by making Kinder Morgan’s $7.4-billion Trans Mountain pipeline expansion project a major election issue. In the aftermath of the vote, they solidified their hold on power by partnering with three Green Party MLAs who are even more against the venture. But only a few days later, in a deliberately timed response, Kinder Morgan announced plans to start construction on the project—which will nearly triple the amount of oil streaming west from Alberta’s oil patch to a port near picturesque Vancouver—in early September.

While the project has attracted numerous lawsuits, B.C.’s opposition is of the 11th-hour variety—coming after Ottawa approved the proposed oil pipeline to the Pacific. Trans Mountain also has the backing of Alberta Premier Rachel Notley’s NDP. Even B.C.’s former government gave grudging approval after negotiating a series of concessions from the project’s backers.

Undaunted, the newly installed B.C. government has pledged to “use every tool available” to halt Trans Mountain through legal channels. The government’s opposition is part of a larger legal battle involving environmental activists and First Nations that could set precedents and determine the fate of a number of proposed energy megaprojects in Canada. It also raises the prospects of a mighty, disruptive standoff between B.C. and neighbouring Alberta and with the Liberals in Ottawa.

Winding through two provinces, the Trans Mountain pipeline is part of Ottawa’s energy plan for the country. In 2016, it won the approval of the federal energy regulator, the National Energy Board (NEB), and was held up as a plan that must go through by the Trudeau government at the same time the Liberals decided to kill Enbridge Inc.’s Northern Gateway pipeline proposal. But since environmental and health matters related to the pipeline are a provincial responsibility, it sets the scene for a series of jurisdictional showdowns.

“The last time we saw a big constitutional case around a federal undertaking was back in the 1950s, so it has been a really long time since the courts have had to think about how the constitutional divisional power should play out,” says Jocelyn Stacey, an assistant professor at the University of B.C.’s Allard School of Law.

At odds: The pipeline comes before party for Alberta NDP Premier Rachel Notley

So how will the legal fate of Trans Mountain be decided? The first important development on that front came at the start of September when the B.C. government was granted intervener status to participate in the Federal Court of Canada’s hearings on challenges to the project. That ruling puts B.C. into the mix of an opposition comprised of First Nations, environmental groups and local governments whose 19 lawsuits against the project are currently rolled into one. That opposition is seeking to overturn the National Energy Board’s review of the project and 2016 stamp of approval (which came with 157 conditions). The Federal Court’s review of the NEB’s assessment is scheduled to start sometime in October.

Making things more intriguing was the government’s announcement in late August that it has hired the legendary lawyer Thomas Berger as its legal counsel for the process. Berger is best known for his landmark work in the 1970s, first serving as legal counsel for the Nisga’a Tribal Council of northwestern B.C. at the Supreme Court, then as leader of the Mackenzie Valley Pipeline Inquiry that recommended against the construction of a huge pipeline through the Northwest Territories and northern Yukon. Berger’s hiring was seen as a sign of the government’s determination to win.

In the meantime, the B.C. government has other tactics that will likely stall, but not stop Trans Mountain. For example, it has said it will not issue work permits until Kinder Morgan has carried out consultation with First Nations to its satisfaction, a condition the government says the company has not yet done.

Development of the pipeline will also be slowed by NEB hearings concerning hundreds of objections on the pipeline route from First Nations, landowners and other parties. The NEB has said hearings will begin in November in Alberta, with B.C. hearings after that. As well, a separate NEB hearing will be held in early 2018 for a route change in Chilliwack, B.C., requested by the company.

When it comes to the court challenge, the biggest potential wildcard is the significant First Nations opposition. The 2004 Haida Nation v. British Columbia decision by the Supreme Court of Canada calls for government to consult Aboriginal groups prior to exploiting lands to which they may have claims. “There is a fair bit of clout I think that the law and the Constitution now gives Indigenous people in how these things affect their interest,” says Matthew Kirchner, a lawyer with Vancouver’s Radcliff & Co., representing two First Nations groups’ legal proceedings against federal and provincial government approvals of Trans Mountain.

First Nations’ legal clout when it comes to resource development on their lands was demonstrated last year when the Federal Court of Appeal overturned the Harper government’s earlier approval of the Northern Gateway after finding Ottawa did not properly consult affected First Nations. The fact that Ottawa had given the go-ahead to the Northern Gateway project after a National Energy Board joint review panel gave its approval (subject to lengthy list of conditions) has many seeing a potential parallel in the Trans Mountain situation.

“The consultation process [in the Northern Gateway review] in my view is almost indistin- guishable from what we saw in Kinder Morgan and the same flaws that the court found in Northern Gateway, we find in the Kinder Morgan project,” says Kirchner. Given potential appeals, he expects it will be “years” before the ultimate fate of Trans Mountain is decided.

For its part, Kinder Morgan has made good, at least symbolically, on its stated plans to being groundwork for construction. In early September, the NEB said 49 conditions required for the project’s Westridge Marine Terminal expansion in Burnaby were met. With that permission granted, crews could start preparing the site. However, permits are still pending from other government bodies for the port and over the length of the 1,150-kilometre pipeline.

The final word on the pipeline will come from the court. But the rifts created in this dispute have the potential to affect other areas of interprovincial relations, as well—with consequences for the upcoming provincial election in Alberta in 2018, and beyond.

Photography by Chris Wattie/Reuters (John Horgan, Justin Trudeau); Dan Riedlhuber/Reuters (Rachel Notley)

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