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Notley says Trans Mountain approval must withstand legal challenges as critics prepare for battle

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Alberta Premier Rachel Notley discusses pipeline expansion with reporters in Calgary, Alta., Sept. 6, 2018.

Jeff McIntosh

Alberta Premier Rachel Notley says Ottawa must move quickly to get the Trans Mountain expansion project back on track while ensuring an approval can withstand further legal challenges from opponents.

Federal and provincial officials are working “furiously” to ensure “that we get it right, and that we evaluate it intelligently to ensure that the path forward is sustainable and is one that stands up to all forms of scrutiny,” Ms. Notley said on Tuesday.

She spoke as one prominent project critic, economist Robyn Allan, submitted a letter to the National Energy Board (NEB) urging it to correct what she said were some fundamental flaws in its original review that led it to under-estimate the impact of increased marine traffic on endangered killer whales.

Ms. Notley on Tuesday attended an event to mark the start of construction at a $400-million oil sands expansion launched by Chinese-owned Nexen Energy ULC about 30 kilometres southeast of Fort McMurray, Alta. A day earlier, Ms. Notley met with federal Natural Resources Minister Amarjeet Sohi at the opening of Suncor Energy Inc.'s massive Fort Hills mine.

Her tour is meant to showcase investments that have advanced in spite of the uncertainty that has engulfed Trans Mountain. But the comments also illustrate the razor’s edge the federal government and proponents of the expansion must negotiate to revive the stalled pipeline expansion.

The Federal Court of Appeal two weeks ago quashed the federal approval of the project, ruling that the NEB had failed to properly assess the impact of increased tanker traffic, and that Ottawa’s consultations with First Nations were inadequate.

In her letter to the NEB, Ms. Allan – formerly chief executive officer at the Insurance Corp. of British Columbia – said that, among other issues, the board overestimated the existing tanker traffic that travels through Burrard Inlet to the Westridge Terminal. As a result, the increase in marine traffic that would result from the pipeline expansion would be far greater than the board represented.

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Relying on information from Kinder Morgan Inc., the board said the project would result in an increase in tanker traffic from an average of five per month to 35. However, Ms. Allan points to records from the Port of Metro Vancouver that indicates actual tanker traffic to Westridge averaged just two per month between 2013 and 2017.

“So it‘s not a seven-fold increase in marine traffic, it’s more like a 15-fold,” she said in an interview.

The difference is important because it could change the board’s calculation regarding the increased marine traffic and its effect on the southern resident killer whales living in B.C. waters.

Ms. Notley has repeatedly pressed Ottawa for a legislative fix that would limit the scope of any further review into marine safety, fearing the project will get bogged down in indefinite hearings. On Tuesday, she said the project record already includes information that wasn’t fully considered on the issue. The NEB found the expansion would have significant adverse effects on the killer whales, but concluded it did not have jurisdiction to deal with those impacts.

“Our concern is about getting trapped inside a never-ending NEB process," she said.

However, Ms. Allan warned the NEB that the government will face further litigation if it approves the project based on erroneous information in the board’s reassessment. The federal government is expected to return the matter to the NEB, but may provide guidance – through legislation or other means – that would limit the board’s scope for reconsidering facts of the case.

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NEB spokesman James Stevenson said the board’s recommendations are based on evidence presented at the “time of application and subsequent proceedings” though additional information can be put on the record by the parties.

Ottawa continues to review its options for re-approving the project in a way that will stand up to any further legal challenge. It is expected to name a high-level panel that will conduct additional consultations with First Nations affected by the expansion, while it also deals with the marine traffic issue.

The federal government plans on taking the coming “days and weeks” to study its next move on the Trans Mountain pipeline in spite of pressure on Ottawa to act quickly, Finance Minister Bill Morneau said Tuesday.

“We’re not going to jump to conclusions because people want an immediate response,” he told reporters in Saskatoon, where Liberal MPs are gathered this week for a caucus retreat.

With a file from Bill Curry in Saskatoon

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