British Columbia environmental groups have filed a new legal challenge to the proposed Trans Mountain pipeline expansion, arguing that cabinet failed to meet its obligations to protect endangered southern resident killer whales when it reapproved the project last month.
The case, filed by Vancouver-based Ecojustice on behalf of two conservation groups, is the first of several renewed legal challenges expected from environmentalists and First Nations opponents who plan to argue that the federal government did not do enough to address their concerns since the pipeline expansion was blocked by a court ruling almost a year ago.
“We are asking the Federal Court of Appeal to evaluate: Did cabinet actually do what the court told it to do?" said Margot Venton, the nature program director for Ecojustice, on Monday.
"And we say the National Energy Board and cabinet together did not do what the court told them to do.”
Ottawa first approved the project in November, 2016. After court challenges by First Nations and environmental groups, the Federal Court of Appeal struck down that approval last August, citing problems with how the government had consulted with First Nations and with its failure to take into account how increased ship traffic would affect the killer whales.
That kicked off a new round of consultations. The National Energy Board released its reconsideration report in February, and the cabinet approved it last month.
In its report, the NEB concluded that project-related marine shipping is likely to cause “significant adverse environmental effects” on southern resident killer whales and that greenhouse gas emissions from project-related marine vessels would be significant.
Despite those concerns, the NEB made an overall recommendation that the project is in the public interest and should be approved, subject to 156 conditions.
The federal government also purchased the pipeline from U.S.-based Kinder Morgan last year for $4.5-billion, with plans to eventually sell it to a private buyer – possibly even a First Nations-led partnership.
In announcing the project’s reapproval last month, Prime Minister Justin Trudeau said the government would act on all of those recommendations and that any money Ottawa earns from the project would be invested in a “clean-energy transition.”
Environmental groups maintain those steps will not be enough to protect the whales.
“The population of southern residents is small and declining,” Raincoast Conservation Foundation senior scientist Paul Paquet said Monday in a statement.
“In order to recover, these imperilled killer whales need urgent support, not an increase of physical and acoustical disturbances, oil spills and contaminants associated with more tanker traffic,” he added.
A spokesman for the Tsleil-Waututh First Nation said Monday that it will file a similar court action.
In a statement, Trans Mountain said it understood that several groups had filed applications with the Federal Court of Appeal and that it would provide its legal arguments through the court process.
"The Trans Mountain Expansion Project has approval from the Government of Canada and the National Energy Board, subject to 156 Conditions that we are committed to meeting," the company said.
“The approvals granted followed many years of engagement and consultation with Indigenous groups, communities and individuals, as well as comprehensive review processes that assessed and weighed the various scientific and technical evidence, while taking into consideration varying interests."
“We remain confident that we have taken the necessary steps to get this right, by following the guidance set by the Federal Court of Appeal," said Vanessa Adams, press secretary for Natural Resources Minister Amarjeet Sohi, in an e-mail.
“Through reinitiated Phase III consultations, we fulfilled our duty to consult with Indigenous communities by engaging in meaningful, two-way dialogue,” she added.