VANCOUVER – The British Columbia government has been ordered by the province’s highest court to reconsider its environmental assessment certificate allowing the expansion of the Trans Mountain pipeline.
In challenges by the Squamish Nation and the City of Vancouver, the B.C. Court of Appeal ruled the province’s approval of the certificate was based on the original report from the National Energy Board, which was later quashed by the Federal Court of Appeal.
After the National Energy Board reviewed the project for a second time, the federal government approved the pipeline expansion again.
The Appeal Court says in its decision released today that in light of changes to the original report of the energy board when it reconsidered the project, provincial approval also needs to be reconsidered.
B.C.’s former Liberal government approved the expansion with 37 conditions, while relying on an agreement with the energy board that would stand for a provincial environmental assessment.
The three-judge panel said in its unanimous decision that through no fault of the provincial government, what is now Canada’s environmental assessment of the pipeline was not the same assessment used when B.C. approved its certificate.
The court dismissed other claims by the city and the Squamish Nation including that the province failed to sufficiently consult with Indigenous groups.
The Federal Court of Appeal agreed earlier this month to hear arguments from First Nations that argue they were improperly consulted before the federal government approved the pipeline expansion for the second time.
The City of Vancouver says in a statement that it’s pleased with the court’s decision. One of the reasons the city pursued the case was the Federal Court of Appeal’s decision that overturning Ottawa’s approval of the project, which led the energy board to reconsider the project and issue a new report.
“The City remains of the view that the Trans Mountain Pipeline project would have significant environmental impacts, including the unacceptable risk of oil spills and increased greenhouse gas emission related to the project at a time when the world needs to reduce emissions,” it says.
Squamish Coun. Khelsilem said while the court did not agree with its argument that the environmental assessment certificates should be quashed, the decision means the province will now have to decide if it will apply new conditions on the project.
The Squamish Nation is ready to provide input on environmental conditions that fall within provincial jurisdiction, such as issues related to the crossings of waterways like creeks, rivers and lakes, he said.
“I think this represents a new opportunity for the province to step up and we’re looking for some leadership,” Khelsilem said.
I think any First Nation with an interest in matters that are related to the B.C. certificate or potential conditions that we would review or may amend or may add to would be consulted by us,” said B.C. Environment Minister George Heyman.
“That is our constitutional legal duty, and one of course that we take seriously given our commitment to the U.N. Declaration on the Rights of Indigenous Peoples.”
Alberta Energy Minister Sonya Savage responded to the ruling on Twitter.
“In the current environment – including severe instability overseas – any potential delay in the construction of this pipeline is deeply disturbing,” wrote Savage.
“Nothing it today’s ruling should delay the current construction schedule,” she added.
“Given the additional work done by the federal government since 2017, we see no reason that the BC Government shouldn’t be able to quickly re-issue its approval.”
Trans Mountain said the court decision means the environmental assessment certificate “is valid and remains in place.”
“Trans Mountain is continuing with construction and planning of the expansion and is committed to building the expansion in a manner that minimizes impacts to the environment and respects the values and priorities of Canadians,” it said in an email statement.
It says the court decision allows the B.C. government to determine whether the energy board’s second review of the project impacts provincial conditions on the pipeline expansion.
“The court affirmed the province is limited to making adjustments or additions to the provincial marine conditions and must do so within the limited scope of provincial authority over marine issues,” Trans Mountain added.
The project would triple the capacity of an existing pipeline from Alberta’s oilpatch to a terminal in Burnaby, B.C.
The federal government bought the existing pipeline and the unfinished expansion work for $4.5 billion last year, promising to get it past the political opposition that had scared off Kinder Morgan Canada from proceeding.