Some Indigenous groups and environmentalists oppose $7.4B project
In a stunning blow, the Federal Court of Appeal has quashed the government’s approvals to build the Trans Mountain expansion project, but the federal government is determined to proceed with the pipeline.
Today’s ruling is a major victory for Indigenous groups and environmentalists opposed to the $7.4-billion project.
In the decision released Thursday, and written by Justice Eleanor Dawson, the court found the National Energy Board’s assessment of the project was so flawed that it should not have been relied on by the federal cabinet when it gave final approval to proceed in November 2016.
The certificate approving construction and operation of the project has been nullified, leaving the project in legal limbo until the energy regulator and the government reassess their approvals to satisfy the court’s demands.
Amid the uncertainty, Kinder Morgan agreed to sell the existing pipeline and the expansion project to the federal government this spring. The company’s shareholders overwhelmingly approved the sale Thursday morning in Calgary in a previously scheduled vote held just after the court’s decision was released.
Now, the Liberal government is the owner of a proposed pipeline project that could be subject to years of further review.
Finance Minister Bill Morneau said the federal government is carefully reviewing the decision but is determined to proceed with the project, that he said, is in the best national interest and “critically important” for the economy.
“We are absolutely committed to moving ahead with this project,” he said at a news conference in Toronto. “What the decision today asked us to do is to respond promptly; gave us some direction on how we can do that in a way that is going to be efficient from a time standpoint. So we will be considering our next steps in light of that.”
Morneau said the Liberal government inherited a “flawed process” for reviewing the project.
He described the pipeline purchase as a good investment that will yield strong returns in years ahead, and that the deal to buy it will be finalized as early as Friday.
In its initial study of the project, the NEB found that the pipeline would not cause significant adverse environmental impacts.
But the court has determined that conclusion is flawed because it did not assess the impacts of marine shipping — increased tanker traffic that would result from the expanded pipeline — on the environment and southern resident killer whales in the waters around the line’s shipping terminal.
More consultation required
The appellate court also found that the federal government did not adequately, or meaningfully, consult with Indigenous people and hear out their concerns after the NEB issued its report recommending that cabinet approve the project.
The court has ordered the federal government redo its Phase 3 consultation.
The Puget Sound pipeline is a 111-kilometre pipeline that runs off the existing Trans Mountain pipeline. It can carry about 180,000 barrels a day across the Canada-U.S. border near Abbotsford, B.C. to refineries in Washington state. (kindermorgan.com)
“Only after that consultation is completed and any accommodation made can the project be put before the Governor in Council (cabinet) for approval,” the decision reads.
“The duty to consult was not adequately discharged in this case.”
Squamish Nation celebrates ruling
Thus, the court is ordering cabinet to direct the NEB to reconsider its approval of the project and remedy some of the concerns raised by the court before cabinet can give the final go-ahead for construction.
Khelsilem, councillor and spokesperson for Squamish Nation in B.C., said many are feeling “elation and happiness and joy” with today’s ruling.
“This government played politics with our livelihood,” he said. “They did not behave honourably and the courts agreed every step of the way.”
‘We are winning’: Several B.C. First Nations celebrate Trans Mountain victory
Khelsilem said the consultation with First Nations was more like note-taking than meaningful consideration.
Other First Nations, however, expressed hope that the project would proceed, including the Whispering Pines First Nation near Kamloops, B.C., part of a contingent that supports the pipeline going ahead under Indigenous control and is trying to buy it.
Conservative Leader Andrew Scheer called today’s ruling “devastating” news for Canadian workers and taxpayers and a “complete indictment” of the Trudeau government’s efforts to get the project off the ground.
A pipeline marker for the Trans Mountain pipeline as it passes by a playground near the Coldwater River and Coldwater Reserve in B.C. (CBC)
“Today’s development is further eroding the confidence in this Liberal government’s ability to get big projects built,” he said. “They either kill or cancel the projects based on ideology, or they mismanage and bungle them to the point where they’re in a very precarious position.”
NDP Leader Jagmeet Singh said the ruling shows the Liberals have failed to live up to their obligation to respectfully consult with Indigenous people. He said the government should stop construction and explore legal options to stop the sale of the project.
View image on TwitterView image on TwitterView image on TwitterView image on Twitter
Pipeline construction for the #TransMountain Expansion Project has officially begun! We celebrated the big milestone over the weekend, as crews kicked off construction in Central #Alberta. #BuildTM #KeepCanadaWorking #ABpoli
6:50 PM – Aug 27, 2018
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Just three days ago, the Trans Mountain Twitter account posted pictures of workers beginning construction of the pipeline expansion.
“Pipeline construction for the #TransMountain Expansion Project has officially begun! We celebrated the big milestone over the weekend, as crews kicked off construction in Central #Alberta,” the tweet read.
In a statement, Kinder Morgan confirmed construction will now stop.