The B.C. government, First Nations and environmental lawyers are using one word to describe the Supreme Court of Canada’s rejection of the latest court challenge against the Trans Mountain pipeline expansion: “disappointed.”
The country’s highest court on Thursday shut down the province’s effort to regulate the flow of bitumen through the controversial project, ending an argument on whether provinces or Ottawa had jurisdiction over interprovincial pipelines.
“Clearly, we are disappointed by the decision, but this does not reduce our concerns regarding the potential of a catastrophic oil spill on our coast,” B.C. Premier John Horgan said in a statement.
Speaking in Kamloops, Attorney General David Eby joined Horgan in promising to do “what we can under our jurisdiction to protect our economy and our environment.”
“Caring about our land and water and our economy, and the impacts of potential spills of not just bitumen but potentially other substances that the province wanted to regulate, is critically important,” Eby said.
The decision was issued from the bench after several hours of hearings Thursday in Ottawa.
It removes one of the remaining obstacles for the Trans Mountain pipeline expansion, which seeks to twin an existing pipeline running between Edmonton and Burnaby, B.C.
B.C. argued it has jurisdiction to protect the environment in its borders and since that province would bear the brunt of any damage from a spill if the pipeline ruptured, it should get a say in what can flow through it.
The Supreme Court’s decision upheld a similar dismissal of the province’s reference case by the B.C. Court of Appeal last May. The lower court ruled the province’s effort to require provincial permits for heavy oil to flow through the pipeline would overstep the constitutional authority given to Ottawa.
The court also noted while B.C. was trying to portray the legislation as a general change to its environment laws, it was clearly targeting the Trans Mountain expansion, since that was the only project to which the changes would apply.
B.C. Liberal Leader Andrew Wilkinson called on Eby and the NDP government to disclose the full legal costs the province has mounted as the case made its way through the courts.
According to the opposition party, that bill is closing in on $1 million since the NDP took power in 2017.
“John Horgan knew the federal government held clear jurisdiction over the pipeline, but he spent millions of dollars just in political posturing,” he said.
“When will the NDP stop the political games and let British Columbians get to work on a project supported by a majority of people in our province?”
Project still faces challenges
The project is still facing a legal challenge from the Tsleil-Waututh Nation, Squamish Nation, Coldwater Indian Band and a coalition of small First Nations in the Fraser Valley focused on the federal government’s consultation with Indigenous communities between August 2018 and June 2019.
Two other First Nations who were originally part of that challenge have since dropped out of the appeal after signing deals with Trans Mountain Corp.
B.C. has also been ordered by the B.C. Court of Appeal to reconsider its environmental assessment certificate and conditions that was awarded in 2017, before the project was briefly halted by the Federal Court of Appeal.
The ruling was made in September in favour of a legal challenge mounted by the Squamish Nation and the City of Vancouver.
It’s through that ruling that the province could still seek to protect its coast while abiding by the Supreme Court decision, West Coast Environmental Law laywer Eugene Kung said.
Kung said while the province could face difficulty in adding additional conditions without frustrating a federal project, it could still further delay construction as Trans Mountain moves to meet that criteria — creating a new test for Ottawa and the project’s supporters.
“Let’s say it caused a delay of six months to a year,” he said. “You might hear that a delay of that length would be financially challenging for the project. And my response to that would be … if one year of delay to create a safer project would cause it to become a financial hardship, then how much of an actual economic boon is it really?”
B.C.’s original certificate placed 37 conditions on Trans Mountain — on top of the 156 placed on it by the National Energy Board — largely centred on spill prevention and coast protections.
Svend Biggs, a climate campaigner with Stand.Earth, said he’s hopeful the province considers strengthening other conditions like research into how to clean up a bitumen spill, along with health and safety questions for those responsible for cleaning it up.
“There’s plenty more the province could do that would basically make the company do more to protect our coastline and protect us from the risk of an oil spill,” he said.
Environment and Climate Change Minister George Heyman said the province is continuing to review the conditions, and that the Supreme Court decision “provides some further context for that work.”
“We remain concerned about the risks posed by diluted bitumen, and we will continue to do all we can to defend our environment, our coast and the tens of thousands of jobs that rely on them,” he said in a statement.
—With files from the Canadian Press
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