Pipeline may well be defeated in courts, not the streets

Federal approval of Kinder Morgan's Trans Mountain pipeline twinning will face many legal challenges

The Kinder Morgan pipeline is a continuing target of protests in B.C.

The Kinder Morgan pipeline is a continuing target of protests in B.C.

Despite winning the approval of Prime Minister Justin Trudeau and the Liberal cabinet, Kinder Morgan’s Trans Mountain pipeline expansion is far from a go.

Opponents have already taken to the streets and threatened civil disobedience on the scale of the Standing Rock impasse over the Dakota Access pipeline, where police have used water cannons to repel demonstrators.

But if the defeat of the Northern Gateway pipeline proposed to cross northern B.C. is a guide, the Trans Mountain twinning through the Lower Mainland is much more likely to be thwarted in the courts than at the barricades.

Like Trans Mountain, Enbridge’s Northern Gateway project from Alberta to Kitimat had the official green light – first from the National Energy Board’s recommendation for conditional approval and then from the Stephen Harper government.

But the Federal Court of Appeal ruled last June the government failed to meaningfully consult First Nations on the Enbridge project, and quashed the federal approval.

“Canada offered only a brief, hurried and inadequate opportunity” to consult First Nations, the judges ruled, concluding the inadequacies “entirely ignored” subjects of central interest to affected First Nations. The court stressed the duty to consult rests with the Crown and can’t be delegated to the proponent.

RELATED:Trudeau green lights Kinder Morgan pipeline Premier says B.C. now ‘very close’ to Yes on Trans Mountain pipeline

Enbridge’s project had faced a total of 18 legal challenges.

Trans Mountain already faces seven and observers believe the legal battlefield will end up just as crowded.

Most actions are likely to come from First Nations, arguing first the NEB and then the Trudeau cabinet have failed to adequately and meaningfully consult them, as required by successive court rulings on the Crown’s duty to respect aboriginal rights and title.

“There are a number of First Nations who are not happy with the (Trudeau) decision, who feel they have not been adequately and meaningfully consulted. That would be the primary ground I can imagine going forward,” said Eugene Kung, a staff lawyer with West Coast Environmental Law.

He has been providing strategy advice to the Tsleil-Waututh First Nation, a band expected to challenge the approval whose traditional territory near North Vancouver looks across Burrard Inlet upon the the pipeline tanker terminal in north Burnaby.

The formal publication of the cabinet decision is expected next Saturday and that triggers a 15-day window leading up to Christmas for opponents to lodge legal challenges.

“A number of opposed parties have been holding their cards tight and haven’t been that public yet,” Kung said. “The decision on Tuesday was really the starting gun for their opposition.”

Enbridge no clear precedent

The court defeat of Northern Gateway is far from a clear precedent signalling Trans Mountain is also doomed.

The circumstances are not identical.

The Liberal government shifted course earlier this year and dispatched a ministerial review panel to gather more feedback from affected parties – particularly First Nations – before the government’s final decision was rendered.

A court could decide that additional review did more to ensure meaningful consultation.

But Kung noted that the Trudeau government’s approval of the $6.8-billion project continued to rely almost exclusively on the NEB’s findings.

“I think it’s interesting that they relied on the 157 conditions unchanged from that NEB process, which this government themselves campaigned on as being a broken and flawed process.”

The federal appeal court judges on Enbridge did uphold the basic framework of the pipeline approval process, including the government’s power to set policy after considering competing public interests and other factors.

That part of the ruling, under appeal to the Supreme Court of Canada, came as a particular disappointment to groups that argued the Harper government wrongly ignored climate change and other environmental factors in approving Northern Gateway.

And if the ruling stands, it may also hinder certain avenues of legal attack against Kinder Morgan.

In other respects, the case against Trans Mountain may be stronger. The Harper government constrained NEB hearings, eliminating the oral cross-examination of experts by interested parties that had been allowed during the Enbridge hearings.

An oil tanker loads at Kinder Morgan’s Westridge Marine Terminal, at the end of the Trans Mountain pipeline in Burnaby.

Another key objection of project opponents is the narrow lens through which the NEB regulators viewed Trans Mountain, focusing on its impacts along the pipeline corridor.

They declined to consider the Tsleil-Waututh an affected First Nation, even though their land is literally in sight of the oil tanker terminal.

And they decided the tanker route through the Strait of Georgia and Southern Gulf Islands was also outside the scope of the project.

“The NEB decided the project ends at the marine terminal in terms of environment assessment, so that it didn’t have to meet environmental assessment requirements for the tanker traffic,” said Dyna Tuytel, a staff lawyer at Ecojustice, a non-profit that is also challenging the NEB approval of Trans Mountain on behalf of environmental groups. “They say that means the Species at Risk Act (SARA) also doesn’t apply to tanker traffic.”

Orcas at risk

Even with the constrained review, the NEB did find in its final report that southern resident killer whales are at risk from the pipeline’s impacts, namely the seven-fold increase in tanker traffic from the current one per week to one a day. But it ruled the adverse impacts on whales were outweighed by the national benefit of the project.

Ecojustice’s challenge argues that because the southern resident orcas are endangered, the project should abide by SARA requirements to lessen or avoid adverse impacts.

The whales face three main threats – pollution, a shortage of chinook salmon, and disruption from increased shipping.

Whales can be hurt or killed by ship collisions, and vessel noise can interfere with their ability to communicate and find prey.

“The tanker route goes right through their designated critical habitat, where they spend a lot of time and which is a crucial hunting area for them for salmon,” Tuytel said.

“Our evidence included an expert report that showed that the combination of all those effects on the whales has a greater than 50 per cent chance of making them effectively extinct this century – reducing their numbers below a number that they can’t recover from.”

A City of Burnaby legal challenge is also set to be heard next week by the B.C. Court of Appeal.

It argues federal authority should not override the city bylaws, such as the one that sought to block pipeline survey crews from cutting trees on Burnaby Mountain.

Burnaby Mayor Derek Corrigan doubts his city will win, unless another decision expected from the Supreme Court of Canada in a different case strengthens municipal powers.

He predicts First Nations have a much greater chance of striking down the pipeline approval in the courts.

Art Sterritt, one of the Coastal First Nations leaders who fought Northern Gateway, says the Kinder Morgan project faces an even bigger political backlash.

But he noted the courts may view Trans Mountain differently because the pipeline has existed for more than 60 years.

“In our case, Enbridge was looking to bring oil into an area where there hadn’t been oil before,” Sterritt said. “That is quite a significant difference.”

Sterritt said federal officials were warned repeatedly that consultation with First Nations over the Enbridge line was inadequate, and the government has been bombarded with similar complaints over Kinder Morgan.

“If they haven’t learned those lessons, they’ll learn them again.”

The oil tanker route to the Trans Mountain pipeline terminal.

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