The project faces stiff opposition from a new government and legal challenges by First Nations and others.
KINDER MORGAN CANADA’S President Ian Anderson seems confident his company will soon break ground on the Trans Mountain pipeline running from Alberta’s oil sands to a coastal terminal in Burnaby. The federal government approved the pipeline following a National Energy Board recommendation. And Alberta Premier Rachel Notley is acting as if the pipeline’s a done deal and dismissing BC’s right to control its coasts.
But is it a done deal? Many BC citizens are adamantly opposed, with First Nations leading the resistance. And on May 9 the ground shifted beneath the $7.4-billion project when the BC Liberals lost their majority in the provincial election. In one of their first post-election statements, leaders of the NDP/Green partnership announced they would “immediately employ every tool available to the new government to stop the expansion.”
It was a far cry from former Premier Christy Clark’s agreement that, subject to conditions and a 20-year revenue-sharing deal, worth up to $1-billion, construction of the 1150-kilometre pipeline could go ahead. But even under a Clark government, there were growing doubts about the viability of the plan to triple the capacity of the pipeline to 890,000 barrels of diluted bitumen a day, with the number of tankers in the Salish Sea increasing seven-fold to about 400 a year.
Now, with a new provincial government, an aroused public, and perhaps most important, strong First Nations opposition, the battle lines are being drawn.
AT LAST COUNT there were 19 legal challenges to Kinder Morgan’s Trans Mountain pipeline expansion project wending their way through the courts. These court cases will test the power of First Nations to demand meaningful consultation, along with the extent of Federal powers. They will also assess claims by First Nations and others that Canada’s environmental assessment process is fatally flawed.
“It’s not going to happen,” said BC Green Party leader Andrew Weaver. He suggests pipeline supporters such as Alberta Premier Rachel Notley and Prime Minister Justin Trudeau look at Section 35 of the Canadian Constitution which protects aboriginal and treaty rights, including those of “meaningful consultation,” and is increasingly used as a legal tool by First Nations arguing that they have not been adequately consulted.
As an example of consultation-gone-wrong, Weaver pointed to the case filed by the Coldwater Indian Band, whose territories are in BC’s southern Interior region, challenging the National Energy Board’s approval of the pipeline.
“It’s an incredibly compelling case. The proposed pipeline sits right at the top of the aquifer which is their only supply of water and it is not as if there was not an alternate route. It was discussed and deemed to be more expensive,” Weaver said.
Prime Minister Trudeau also has to figure out how pushing through the pipeline over First Nations objections could possibly square with his commitment to the United Nations Declaration on the Rights of Indigenous Peoples. That declaration requires consent for such developments, Weaver noted.
Previous governments resisted signing the declaration because of fears it would effectively give First Nations veto power over major projects. But Eugene Kung of West Coast Environmental Law legal counsel said there is a difference between consent and veto and, with the shift in aboriginal law in Canada, the distinction needs to be publicly clarified.
“Think about another place where we use that term ‘consent’—in the context of sexual assault and harassment,” he said. “No one would ever say in that context that, by a victim denying consent, that it would be vetoing the perpetrator’s decision, because the perpetrator doesn’t have rights over the victim’s body. You need mutual consent for advancement.”
Sixteen judicial review cases, which include challenges by seven First Nations, the City of Vancouver, City of Burnaby, Raincoast Conservation Society, Living Oceans Society, and Democracy Watch, have been consolidated and will be heard by the Federal Court of Appeal, likely this fall. If there are appeals, the issue could be heading for the Supreme Court.
Another challenge has come from two Washington State tribes over the effect that vastly-increased tanker traffic will have on endangered southern resident killer whales.
Even though the judicial review cases have been consolidated, each First Nation challenge is based on unique facts, according to Kung. “Each First Nation has an independent right to be consulted and accommodated in projects that affect their territories…Success on any one of the First Nations legal challenges could delay or stop the project,” he said. Enough delays, and Kinder Morgan could find it all too expensive to proceed.
Kinder Morgan says it has agreements, amounting in total to over $300 million, with 40 First Nations, though it will not identify them. It’s presumed many of these are at the Alberta end of the pipeline. At the crucial and densely-populated Lower Mainland part of the pipeline, opposition is strong. Most of the First Nations there are involved in the court cases (e.g Tsleil-Waututh, Musqueam, Squamish, Sto:Lo, Kwantlen).
On Vancouver Island, some First Nations, like the Ditidaht, Pacheedaht, and Pauquachin, have signed agreements with Kinder Morgan in order to be eligible for spill response funding.
In all, though, at least 13 First Nations in BC are formally opposing the project.
The legal climate around aboriginal rights and title has undergone profound changes since the 2014 Tsilhqot’in decision that, for the first time, recognized aboriginal title. Combined with other recent court decisions that have favoured First Nations, including the scuttling of Enbridge’s Northern Gateway pipeline, the game has changed. In the Enbridge case, the Federal Court of Appeal overturned the Harper government’s approval of the project, after finding the Canadian government failed to properly consult the First Nations affected by the pipeline.
As Kung noted, “I think the provincial and federal governments have been slow to respond meaningfully to the direction the Supreme Court of Canada and the courts have set, and the companies have really underestimated the importance of these cases.”
While the Province of BC under Christy Clark formally approved the Trans Mountain expansion, it is contingent on 37 conditions being met, in addition to 157 from the federal approval. Any of these may provide First Nations and the Province with more ammunition in their resistance to the Trans Mountain project.
John Horgan, NDP leader and premier-designate of BC, has indicated he’s prepared to go to court over the pipeline expansion project, and will likely join one of the legal challenges. The Alberta government has already been granted intervener status in the judicial review—advanced by municipalities, First Nations and environmental groups—challenging the National Energy Board’s recommendation as well as the federal Order in Council approving expansion.
Reflecting a growing confidence in the power to win in the courts, Grand Chief Stewart Phillip, Union of BC Indian Chiefs president, sent a strong message to Premier Notley, who, in a much-quoted statement had said: “Mark my words, that pipeline will be built, the decisions have been made.”
Phillip immediately responded: “Mark my words, Kinder Morgan’s Trans Mountain expansion project will never see the light of day.” He continued: “We do not accept the unscrupulous liability of dirty oil coming through any pipeline system to benefit some Texans or multinational interests at the expense of our inherent responsibilities to our grandchildren’s grandchildren.”
CHIEF PHILLIP, however, is not relying solely on the courts. He believes it may well be financial pressures that finally put visions of a pipeline expansion to rest. Noting that the price differential between selling to Asia and selling to the US has shrunk, he said, “When this project was first being developed a number of years ago, oil was $100 a barrel and we all know oil is never going to go back to those prices again…A lot of underlying assumptions have been debunked.”
Phillip continued, stating that investors must be concerned about the court cases, especially in light of the Rio Tinto ruling last year that gave aboriginal communities the right to sue for compensation if their rights are infringed. Investors, he noted, will also be concerned about the likelihood of protests.
Phillip feels that there is no doubt that, if the pipeline proceeds, there will be civil disobedience. “I think, in many ways, Burnaby Mountain was a warm-up that demonstrated that, when push comes to shove, there will be strategies on the ground to prevent the project from moving forward,” he emphasized. “I