B.C.’s opposition to the Trans Mountain pipeline appears to be running out of tools
Barely a year after threatening to use every tool it could to stop the Trans Mountain pipeline expansion from going ahead, the B.C. NDP government’s toolbox is looking pitifully empty.
The setbacks have been big and embarrassing. The next one could be the ugliest. The province and its anti-pipeline allies are waiting for the result of lawsuits before the Federal Court of Appeal challenging the National Energy Board’s (NEB’s) permit. Arguments were made last fall and a ruling is expected this spring.
The record is not promising. Since 2014, the courts ruled in Trans Mountain’s favour 14 out of 14 times in cases challenging the regulatory review process or decisions related to the project, according to Kinder Morgan Canada Inc., a proponent of the project to triple the size of the Edmonton to Burnaby pipeline. Yet the string of legal failures hasn’t discouraged pipeline opponents from continuing to threaten more lawsuits. With so many tools having failed, the new strategy seems to be to throw mud on the wall to see if anything sticks.
The latest case to misfire involved the province of British Columbia supporting Burnaby’s denial of municipal permits to stall construction at the pipeline’s marine terminal. When the company asked the NEB to intervene, Burnaby blamed Trans Mountain of incompetence. It lost. The NEB ruled Trans Mountain could ignore Burnaby’s permits and start building, confirming federal jurisdiction supersedes local bylaws.
Then B.C. sided with Burnaby again in appealing the ruling to the federal court of appeal. Last Friday the court dismissed it, putting a huge smile on the face of Alberta Premier Rachel Notley. “It wasn’t that we won the decision, it was the court wouldn’t even hear it. So it was a pretty definitive victory for the pipeline and for the people of Alberta and Canada,” she said.
Undaunted, Burnaby’s mayor, Derek Corrigan, said Tuesday he intends to keep fighting the fight and to go to the Supreme Court of Canada. In a news release, he said that the Federal Court of Appeal did not give consideration to arguments made by Burnaby and the provincial government and that judges should have explained why the provincial government was not being allowed to protect B.C.’s environmental interests.
“I think the National Energy Board has shown itself to be an agent of the oil industry,” the mayor told the Burnaby Now newspaper. “I think most people across Canada who have been in opposition to the pipeline feel the process hasn’t been fair and that it is in the direction of the oil companies.”
Green Party of Canada leader Elizabeth May piled on and dismissed Alberta’s victory celebration, calling it “a minor court victory (that) impresses no one. The courts will have the final word on this misguided project and it is my hope that Indigenous rights and climate justice will prevail.”
George Heyman, B.C.’s minister of environment and climate change strategy, picked a tool of his own to stall the pipeline expansion.
He announced new regulations on bitumen transportation in late January, including “restrictions on the increase of diluted bitumen transportation until the behaviour of spilled bitumen can be better understood and there is certainty regarding the ability to adequately mitigate spills.” The move backfired spectacularly after Alberta responded with a boycott of B.C. wines and cancelled talks to buy the province’s electricity. B.C. backtracked, but not without serious damage. The Alberta government has since laid the groundwork to cut off oil exports to B.C. if its pipeline obstruction continues.
B.C. then retained lawyer Joseph Arvay to prepare a reference case in the courts to test the province’s right to protect its land, coast and waters.
Protesters lost in court, too. Most recently, their protests in Burnaby were restrained by the B.C. Supreme Court, which granted Kinder Morgan an indefinite injunction prohibiting pipeline protesters from entering within five metres of the work site. The injunction resulted in a large number of people getting arrested, including the Green Party’s May.
Aside from getting media attention, the protests’ aim was to disrupt Trans Mountain’s work and delay the pipeline. The company got things done regardless.
“The tree removal portion of the preparatory work is now complete,” the company said. “Crews will continue to be on site to complete clean up related to this work, including removing the salvageable timber and waste wood from the site.”
It’s a marvel B.C. taxpayers aren’t asking their politicians who’s paying for all this. Already, Corrigan is complaining Burnaby should not be stuck with the cost of policing protests, as if he had nothing to do with them. Lawsuits are expensive, too, as is a reputation of political instability.
Financial Post