The Federal Court of Appeal has granted B.C. the right to be an intervener in a legal battle over the Kinder Morgan Trans Mountain pipeline expansion.
But the approval comes with a tight turnaround, and several conditions.
B.C.’s new NDP government, which is opposed to the project, applied to be an intervener on Aug. 22, missing the initial deadline of April 13 that fell before the May provincial election.
B.C. must now file its submissions within the next three days.
The Sept. 1 deadline is the same one given to Alberta, which has been preparing its case for several months.
As part of the decision, the judge also ruled B.C.’s submissions must be no longer than Alberta’s and that B.C. is not allowed to advance new issues.
In addition, the province must pay $7,500 to Trans Mountain which will have to to prepare a late response to the arguments.
“[It is] absolutely appropriate and necessary that we have the opportunity to defend British Columbia’s interests in this very important case,” Environment Minister George Heyman said in a statement on Tuesday.
The NDP announced earlier this month that it would seek intervener status in the case, and retain former Supreme Court Justice Thomas Berger as an external counsel on how to oppose the project.
It also said it would stop Kinder Morgan from beginning any construction on Crown land, arguing the company had failed to adequately consult with First Nations in earning its environmental certificate.
Lawyer Eugene Kung of West Coast Environmental Law has been following the case closely, and said he expects the province to put First Nations at the Centre of the debate.
“The province also has to meet its constitutional duties to First Nations as does the federal government who of course has been a big part of these challenges. You know, what do we expect in an age of reconciliation in terms of the conduct? I would suggest that we don’t want our governments to be aiming for the floor but to actually exceed what the bare minimum currently says.”
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And while the federal government does have jurisdiction over large infrastructure projects such as this one, Kung said it is certainly not impossible for First Nations concerns to win the day in court.
“Opposition that’s grounded in Indigenous law and in the decision making of the communities themselves, when combined with what are very powerful constitutional rights in Canadian law, and then of course broad massive public support, can — and have — stopped pipelines.”
The controversial pipeline expansion project has already been approved by Ottawa, the former B.C. government, and the National Energy Board (NEB).
The $6.8-billion project would triple the capacity of the existing 1,150-kilometre pipeline between Alberta and Burnaby, along with associated tanker traffic.
The Federal Court of Appeal is set to begin its hearing on Oct. 2, 2017.
-With files from Amy Judd and the Canadian Press
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