Kinder Morgan: Legal questions and a business decision

By Yves Faguy April 11, 201811 April 2018

Kinder Morgan: Legal questions and a business decision


Three days after Kinder Morgan announced it is suspending "non-essential activities" spending on its Trans Mountain pipeline project, stakeholders – of the political variety at least – are still in a panic. Alberta Premier Rachel Notley has said her government would consider acquiring the pipeline in some form to ensure Alberta oil can be shipped overseas. BC Premier John Horgan is digging in, promising to continue in supporting legal action against the project. And the Trudeau government is drawing criticism for having not yet come up with a solution, as well as staying tight-lipped over a cabinet discussion about the issue yesterday.

Is there a legal solution?

None that is readily available.  Part of the issue here is that B.C. hasn’t actually done anything (yet), legally, to block the pipeline.  What’s more, pressuring the federal government to invoke 92.10 (c) of the Constitution Act, 1867 to declare that the pipeline is in the national interest is of limited value — given that most observers agree that it already falls under federal jurisdiction.  Complicating matters further, there is a Federal Court of Appeal ruling about to be rendered on a legal challenge launched by several First Nations and opponents of the project.  Kinder Morgan acknowledged as far back as May of last year that this could put an end to the project altogether.  A ruling upholding the Trudeau government’s approval of the pipeline project, it has been suggested, could give the B.C. government a face-saving way out of promise to legislate against it, but that won’t stop activists from applying political pressure.  Also, a reference to the Supreme Court of Canada for judicial review is one way to speed things up. But even then, it’s unlikely the top court could deliver a judgment in time before the May 31st deadline imposed by Kinder Morgan to end the uncertainty around the project.

Why it all matters

The question that should probably be discussed in a little more detail is the non-legal one. Is the Kinder Morgan pipeline at all economically viable in the long term? And is the company just looking for a convenient way to get out?


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Martin West 4/12/2018 5:02:51 PM

The only reason it would not be economically feasible is because of the inaction and illegal protests that are delaying the project.

Blair 4/13/2018 5:39:07 PM

And if all the courts and all the politicians agree to agree then the Indigenous people will stop it on their own. Why no mention of the most important group here. If Canada tries to ram this down their throat the world will notice and Standing Rock will look like a tea party ( no pun intended). Why can't we move forward?

Diana Schroeder 4/21/2018 3:21:42 AM

Kinder Morgan has not submitted the necessary documentation to obtain permission to begin construction, from both the NEB and the Province of BC. If they want to give their shareholders a construction start date, they need to complete the paperwork and meet the requirements. The protesters were only a temporary inconvenience and provided a scapegoat for KM. Don't blame BC for the mismanagement of KM.

cynthia 4/14/2018 2:31:36 PM

And we will win! Justins fake Re CON ciliation will lose.


In fact, on the question of jurisdiction, legal experts say the biggest threat to the pipeline’s construction through B.C. comes not from Horgan’s NDP government, but from members of coastal and interior First Nations along the pipeline route who oppose it. They stand on unceded land and have signed no treaties with the Crown that could undermine their legal position. They can point to previous Supreme Court wins regarding First Nations title to land in B.C. And they are willing to erect barricades to stop construction of the pipeline through their territory.

Trudeau has no plans to meet with First Nations leaders when he flies back to Ottawa this weekend, the Prime Minister’s Office told VICE News on Friday.


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