The Power of Perspectives

The Canadian Bar Association

Supriya Tandan

Three legal pitfalls for Trans Mountain to avoid the fate of Northern Gateway

December 1 2016 1 December 2016


Kinder Morgan’s Trans Mountain pipeline may have gotten the nod from Ottawa. But proponents would be wise to draw some legal lessons from the dismissal of Enbridge’s proposed Northern Gateway Project. In May 2016, the National Energy Board reported seven court challenges to the Trans Mountain project from environmental groups, municipalities and indigenous communities. The Trans Mountain project may affect different communities and landscapes than Northern Gateway but it is hardly immune to threats that ultimately killed the Enbridge proposal.

For starters, the Northern Gateway project was halted due to an improper use of an equivalency agreement between the Government of British Columbia and the National Energy Board. In its decision, the BC Supreme Court held that while the province could rely on a federal environmental assessment, it still had to issue its’ own Environmental Assessment Certificate. As Roy Millen, Sandy Carpenter and Peter Hogg pointed out at the time, the court effectively was telling the B.C. government that it could impose its own conditions:

“The Court agreed that B.C. could not refuse to approve the Project or block it from proceeding, since this would directly conflict with the federal approval of the Project. However, B.C. can impose conditions on the Project “that seek to advance environmental protection interests.” In effect, B.C. cannot say “no” to the Project; but it can say “yes, with further conditions.”

If B.C. imposes additional conditions that make the Project practically impossible, or which conflict with the federal conditions such that the Project cannot comply with both sets of conditions, then the B.C. conditions would be invalid. However, in prior cases, the Supreme Court of Canada has held that a provincial law may be more restrictive than federal law in the same sphere.”

As West Coast Environmental Law pointed out in January, B.C. must tread carefully when it issues an expected Environmental Assessment Certificate to Kinder Morgan (the province has been conducting its own environmental assessment for months now):

“Like Enbridge, the Kinder Morgan NEB review is the sole Canadian regulatory process, thanks to the same Equivalency Agreement. That process in many ways, has been even worse than the Enbridge Joint Review Panel (JRP) process that is currently subject to judicial review – unlike the Enbridge JRP, the Kinder Morgan NEB process has not even included public hearings or cross examination, nor is it fully considering the impacts marine shipping.”

Northern Gateway’s project approval was also challenged in the Federal Court of Appeal. The court ruled that the responsibility to weigh the scientific evidence of environmental impacts with the economic benefits of resource development is political and, as such, is a decision best made by politicians. That conclusion is being  appealed to the Supreme Court of Canada. If successful, the appeal could mean that the science evaluated in Trans Mountains’ environmental assessment could come under legal scrutiny.

Finally, and perhaps most importantly, the Federal Court of Appeal quashed the cabinet approval of Northern Gateway due to the federal government’s conduct when consulting with the Gitxaala First Nations. As Sharon Masher at notes, the Court had particular concerns regarding the former Conservative government’s execution of Part IV of their consultation framework:

“Phase IV provided for additional, direct consultations between Canada and Aboriginal groups after the JRP Report and before the Governor in Council considered the project, with Phase V contemplating further consultation during the regulatory and permitting processes after project approval. The court was satisfied that “[o]verall, the parties had ample opportunity to participate in the Joint Review Panel process and generally availed themselves of it” (at para 48). However, it was Phase IV of the consultation process representing as it did Canada’s first and last opportunity to discharge its obligation to engage in direct consultation and dialogue with Aboriginal groups on matters of substantive concern related to the Project on which the majority focused its attention. While further consultation in the regulatory and permitting processes following project approval was contemplated, because the Governor in Council’s decision is a “high-level strategic decision that sets into motion risks to the applicant/appellant First Nations’ Aboriginal rights” (at para 237), the majority held that the duty to consult had to be discharged before the Governor in Council’s decision approving the Project.”

Six First Nations have already filed court challenges to the Trans Mountain project. Thus far, the Tsleil-Waututh Nation has been unsuccessful in its attempt to stop the NEB’s  review process. The Trudeau government, hoping to avoid the previous government’s mistakes, used interim principals to guide consultations with indigenous communities affected by Trans Mountain. But will they be enough to fulfill the courts’ requirements for deep consultation that is meaningful and responsive?

Photo licensed under Creative Commons by Mark Klotz

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