The Federal Court of Appeal’s decision to quash Ottawa’s approval of the Trans Mountain pipeline expansion is likely to delay the project for years, legal and political observers say.
The ruling means the National Energy Board must consider the impacts of increased tanker traffic on the marine environment and the federal government must consult more meaningfully with First Nations.
The energy board should first conduct its new review, which will involve receiving written submissions, consulting with Indigenous groups and holding hearings, said Chris Tollefson, a law professor at the University of Victoria.
The board’s first review took two years, and while the new assessment will be focused specifically on tanker traffic, Tollefson said the board must seriously consider the effects on endangered southern resident killer whales.
“The reality is that this proposal as currently planned would impact orcas unless it is changed,” said Tollefson, who represented BC Nature and Nature Canada during the first energy board review.
There are only 75 southern resident orcas left and few have reproductive potential. The project would have a serious impact unless design changes were made, such as altering shipping routes, reducing tanker speeds or the number of vessels, Tollefson said.
“In light of what the court had to say, I don’t think that should be hurried. I think it needs to be done right. It’s a central feature of this project.”
Once the board issues a new recommendation to cabinet, the federal government will have to redo its final phase of consultation with all the affected First Nations along the pipeline route.
Eugene Kung, a lawyer who has worked for project opponent the Tsleil-Waututh Nation, warned that if Ottawa tries to rush consultation, the project could just wind up back before the court.
“The federal government continues to take direction from the courts and interpret it through a lens of, ‘What is the least we can do?’ … In the age of reconciliation, but also if the federal government is looking to avoid future appeals, they need to start aiming for something higher than the floor,” said Kung.
The court ruled that Canada must not only listen to First Nations during consultation, but also seriously consider their specific and real concerns and provide a response, including accommodations where necessary.
For example, the Coldwater Indian Band in British Columbia’s southern Interior raised concerns about the pipeline route passing through an aquifer that is the sole supply of drinking water for the First Nation’s main reserve, but the government did not reroute the pipeline or provide a new water source.
“They were undertaking the (final) consultations with First Nations in a rushed manner and not taking the time to listen, to try to accommodate and to have a genuinely two-way conversation, which takes longer than listening, taking notes and relaying them to decision-makers,” said Kathryn Harrison, a political scientist at the University of British Columbia.
It’s highly improbable Trudeau’s government will be able to get the board review and Indigenous consultations done before the next election in the fall of 2019, said Harrison, who added that it’s difficult to say how the ruling will affect the Liberal government’s chances.
“How does Justin Trudeau respond to (Alberta Premier) Rachel Notley’s directives to him and withdrawal from the climate plan?” she asked. “What steps can he take to reassure the oil industry that Canada knows what it’s doing in reviewing major projects?
“To what degree does the government convince Canadians that buying this pipeline and committing to build a new one was a good investment of taxpayers’ dollars?
“It really depends on what the Trudeau government does.”
Notley announced Thursday she was pulling Alberta out of the federal climate plan until Ottawa gets the pipeline expansion back on track. She demanded that Trudeau appeal the ruling to the Supreme Court and hold an emergency session of Parliament.
Trudeau said Friday he is committed to getting the project done “the right way.” He suggested he will follow the Appeal Court’s guidance on how to proceed.
“We are taking the time now to understand the court ruling, which addresses two things that are very important to this government — getting the science and the environmental protections right, and making sure we are walking forward in a true path of reconciliation and partnership with Indigenous Peoples,” Trudeau said after an event in Oshawa, Ont.
“We’re going to continue to move forward to get this pipeline built in the right way by acknowledging what the court has said.”
Even if the federal government did seek leave to appeal and the Supreme Court agreed to hear the case, that would take 18 months to two years, experts said.
The expansion project would triple the bitumen-carrying capacity of the Trans Mountain pipeline between near Edmonton and Metro Vancouver and increase tanker traffic in the Burrard Inlet sevenfold.
Kinder Morgan Canada Ltd. first announced the proposal in 2012 and shareholders voted Thursday to sell the pipeline to Canada for $4.5 billion.
The Canadian Press