Saturday, 20 October, 2018

Federal Court of Appeal to rule on Trans Mountain pipeline expansion

Court quashes Trudeau’s approval of Trans Mountain pipeline By Mike De Souza in News Energy |
August 30th 2018 Court quashes Trudeau’s approval of Trans Mountain pipeline By Mike De Souza in News Energy | August 30th 2018
Derrick Tucker | 31 August, 2018, 18:15

Canada's Federal Court of Appeal on Thursday halted the contentious Trans Mountain pipeline expansion that would almost triple the flow of oil from the Alberta oil sands to the Pacific Coast - a setback that comes just as the government is buying the project.

Some provinces are fighting the federal climate plan in court; the provincial government of Saskatchewan says it will not submit its plan for the federal government to review, and earlier this summer it filed a constitutional reference to Saskatchewan's Court of Appeal to ask whether Ottawa has the right to impose various taxes on jurisdictions.

That failure "was so critical that the Governor in Council could not functionally make the kind of assessment of the project's environmental effects and the public interest that the (environmental assessment) legislation requires", says the ruling written by Justice Eleanor Dawson.

The environmental groups involved in the case cheered the ruling, with Ecojustice, the Living Oceans Society and the Raincoast Conservation Foundation calling it a "critical win" for the climate and coastal ecosystems.

Notley wants Prime Minister Justin Trudeau's government to immediately appeal the ruling to the Supreme Court of Canada and call an emergency session of Parliament to fix the process so that the pipeline can be built. They were supported by the province of British Columbia, which was an intervener, as was Alberta. Premier John Horgan said Thursday the province will continue to pursue the reference case.

The ruling came within hours of Kinder Morgan Canada Ltd. shareholders voting more than 99 per cent in favour of the sale of the Trans Mountain pipeline and its expansion project to the federal government for $4.5 billion. Since that is a major concern of some aboriginal people, the federal government therefore was not seen to have adequately consulted First Nations, as required by law, said Andrew Leach, associate professor of business economics at University of Alberta.

As for consultations with Indigenous communities, the court found that the government's representatives "limited their mandate to listening to and recording the concerns of the Indigenous applicants and then transmitting those concerns to the decision-makers". Talks to include Canada are now taking place in Washington.

"Canada is buying Kinder Morgan's assets for a dirty fossil fuel expansion that just got quashed and is left the owner of an antiquated pipeline in need of repairs", said UBCIC Grand Chief Stewart Phillip.

The court has ordered the federal government redo its Phase 3 consultation.

"We're concerned about the potential consequences of this decision", Suncor Energy Inc. spokeswoman Sneh Seetal said by phone.

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"The current state of affairs in Canada right now is such that building a pipeline to tidewater is practically impossible".

In order for infrastructure company Kinder Morgan to resume construction, the court said the energy regulator and the government must comply with its orders, which could take years.

Trudeau approved the expansion, arguing that it was "economically necessary", and it enabled him to overcome opposition to a carbon tax plan that will help Canada cut its greenhouse emissions.

Under the Constitution, Canada has a "duty to consult" and accommodate Indigenous people when a project may impact their Aboriginal or treaty rights. "Now they choose the hard way or the harder way", he said. Christian said the people who benefit from the court decision are lawyers.

The expansion would triple the capacity of the Trans Mountain pipeline from near Edmonton to Burnaby, B.C., to 890,000 barrels a day.

The court ruled that the review contained one fatal flaw: it excluded the project's impact on marine shipping. "It has always been obvious that the Trans Mountain Pipeline Expansion Project violates Indigenous sovereignty and would cause irreparable harm to our environment and the health of people; while threatening the extinction of the southern resident orca".

"This is a major victory for my community", said Coldwater Indian Band Chief Lee Spahan.

"Certainly it is something that will no longer be top of mind for British Columbians", he said.

"This absolutely needs to happen", she said.

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