Océans en santé. Communautés en santé

Trans Mountain: Where have all the Court Challenges Gone?

September 25, 2019

If you’re having trouble keeping up, it’s no surprise! This pipeline might just be the most-litigated project in Canadian history. Here are some of the highlights.

Living Oceans and Raincoast Conservation Foundation asked the Federal Court of Appeal for leave to bring a new challenge to the Reconsideration Report and Cabinet re-approval of the project. (The Reconsideration Report was the National Energy Board’s response to our successful court challenge of the original environmental assessment.) Our grounds are pretty straightforward: the government has still failed to protect Southern Resident Killer Whales, in violation of the Species at Risk Act.

We were surprised to see the court’s decision, which basically said, “No, because we’ve already decided that question.” Remarkable, in that this question has never been asked of the court. Our lawyers at Ecojustice are currently preparing an appeal to the Supreme Court of Canada.

The Supreme Court might not hear our case—it’s completely discretionary. But they’ve never before made a ruling about the Species at Risk Act and our case would provide clarity on how endangered species are supposed to be protected from impacts of development. We won’t know for some time yet whether or not the case will proceed.

In the meantime, the same court has allowed several challenges by First Nations, albeit with restrictions on what issues they can raise. Some of those Nations may also appeal the ruling.

On a related matter, the Federal Court issued a ruling in the case brought by B.C. against Alberta’s so-called “turn off the taps” law. The Court has granted a temporary injunction against using the Act to cut off supplies to B.C., which gets about 80% of its gasoline and diesel fuel from Alberta. The injunction will last until the case is heard in full, some time later this year. B.C. had previously taken its case to the Alberta Court of Queen’s Bench, where it was dismissed because B.C. lacked standing to challenge the constitutionality of Alberta’s legislation in that Court.

The B.C. Court of Appeal recently awarded a partial victory to Squamish Nation, who were trying to set aside the Provincial environmental assessment certificate. That ruling requires the Province to re-examine the conditions it imposed on the project, in light of the Reconsideration Report. The Province will have to try to come up with some conditions that are within its jurisdiction and respond to the new findings in the Report. One thing is for certain: they’ll need to do more consultation with the Nations, who may have some interesting ideas of their own about conditions.

You likely recall that the government of B.C. submitted a reference case on the question of its right to regulate diluted bitumen flowing through the province. The B.C. Court of Appeal held that the Province couldn’t exercise its authority so as to frustrate federal ambitions. (Some would say, “too late”). That case is also on appeal to the Supreme Court of Canada.

Construction is proceeding at several points along the route, despite the court proceedings and the fact that vast stretches of the pipeline’s route have yet to be approved. Landowners, including individuals, First Nations and municipalities continue to object to granting rights of way for reasons of public safety, the integrity of community water supply and the protection of streambanks.

Trans Mountain:  Who’s Paying the Piper?

When the National Energy Board assessed Trans Mountain, it made a finding that the project was in the public interest. It essentially bought Trans Mountain’s argument that it would deliver financial benefits and jobs; and that these outweighed any far-fetched environmental concerns. Even as they did so, though, the Board imposed a condition designed to make sure the project is commercially viable: Three months before starting construction, Trans Mountain should file proof that at least 75% of the total pipeline capacity is contracted out to oil shippers for at least 15 years.

Think what you may about it being in the public interest, now that we own the pipeline project, it’s more important than ever to ensure it’s a sound investment. The government won’t be able to sell it otherwise. You and I will be paying for it, otherwise. And all those alleged benefits would disappear, leaving us with a very expensive hole in the ground.

I should point out right here that there are contracts in place with shippers for 80% of the pipeline’s capacity. But the rates to be charged to the shippers under those contracts support a construction cost of only $7.4 billion. The project today is estimated to cost $10-12 billion.

The federal government won’t tell us how much they think it will cost to complete, but Trans Mountain has told us that they have not gone back to their shippers to re-open the contracts and negotiate deals that would support the full construction cost. They’re holding pat with the old contracts.

So, Canadians build a pipeline for $10-12 billion knowing full well they can’t sell it for more than $7.4 billion; but the plan is to sell it to recoup our investment.  It seems to me that’s a $3-5 billion subsidy to the oil industry and the buyer of the pipeline.

It boggles the mind that we can acknowledge a climate crisis, but massively subsidize the construction of 50-year infrastructure for an industry we need to sunset within a decade in order to solve the climate crisis.  Such is politics, in this great and diverse nation.

Living Oceans has filed a formal request with the National Energy Board (now the “Canadian Energy Regulator”) to review its decision on Condition 57, which requires proof of commercial viability. We say Trans Mountain has to go back to its shippers, in a market where oil is worth half what it was when this pipeline was dreamed up and the cost of the pipeline has doubled from its original $5.4 billion estimated cost. Prove it’s commercially viable by asking shippers again, “Will you pay the piper?”

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