When a killer whale recently spent days carrying her dead calf through the Salish Sea, the mournful display brought renewed attention to the plight of southern resident killer whales.
The endangered whales share the waters where tankers would carry increased production from the Trans Mountain Pipeline expansion, and their survival is among the many questions the Federal Court of Appeal must address when it releases a long-awaited ruling on challenges to the project on Thursday.
The case is one of the most important legal decisions to date for a project that would nearly triple the capacity of an existing pipeline, and that Liberal Prime Minister Justin Trudeau has insisted will go ahead. The court has heard a combined challenge – 16 cases involving 31 parties questioning the National Energy Board’s approval of the project – all consolidated into one ruling.
First Nations, including the Tsleil-Waututh and Squamish First Nations of southwestern B.C., have been outspoken in their opposition to the expansion. They have contended in court that they were not properly consulted. Vancouver and Burnaby have also raised safety and pollution concerns.
But environmental groups have focused on orcas.
The threats to the southern resident population include pollution, shipping noise and lack of prey as numbers of chinook salmon, a primary food source, have declined in recent years. The problems are widely acknowledged: In June, the federal Department of Fisheries and Oceans noted the population was facing an imminent threat to survival and pledged measures aimed at, among other things, slowing vessel traffic down to reduce noise and asking shippers to change their routes.
Environmental groups that oppose the project say it would put whales at risk from potential spills and that additional tanker traffic would result in more noise that could affect the animals’ ability to hunt and communicate.
“The basis for our legal challenge was saying that the National Energy Board and cabinet acted unlawfully [by using] an overly narrow interpretation of the law that avoided addressing the project’s impact on southern resident killer whales,” said Dyna Tuytel, a lawyer with Ecojustice who represents two environmental groups, Raincoast Conservation Foundation and Living Oceans Society, in the case.
“And cabinet then relied on that report to approve the project – with the result that it was approved without any mitigation for its effects on the killer whales," she added.
A three-person National Energy Board panel recommended approval of the pipeline, subject to 157 conditions, in May, 2016.
Those conditions include a marine-mammal protection program. But Ms. Tuytel says that program isn’t enough to protect the whales because it lacks essential mitigation measures that would have been legally required had the NEB used different parameters to review the project.
The Liberal cabinet approved the Trans Mountain expansion in November, 2016. In May of this year, after proponent Kinder Morgan said it was worried about opposition to the project, the federal government agreed to buy it for $4.5-billion.
Kinder Morgan shareholders are scheduled to vote on that offer on Thursday.
The government undertook a “very vigorous” review process before approving the project and is confident it will win the case, Natural Resources Minister Amarjeet Sohi said Tuesday.
But a spokesman for the Tsleil-Waututh said the proposed expansion would have devastating impacts on endangered killer whales.
“We have seen the whale population [decrease], with the pollution and the tanker traffic already … it would deplete the whole population,” said Rueben George, manager of the band’s Sacred Trust initiative, which was set up to oppose the expansion project.
“Nothing is worth the risk to kill off a species,” he added.
There have been several legal challenges to the project, but Thursday’s Federal Court of Appeal decision is seen as critical.
“This is a really significant decision and it has the potential – if the applicants are successful – to stop the process and force the government, and potentially the National Energy Board, to go back to the starting point and begin the process again," said Margot Young, a professor at the University of B.C.'s Allard School of Law.
The consolidated case challenges both the NEB and federal cabinet approvals, said Eugene Kung, a lawyer with West Coast Environmental Law.
“If the applicants are successful, it could quash or take away the underlying approvals the expansion has," Mr. Kung said.
Regardless of Thursday’s outcome, observers such as Ms. Young and Mr. Kung expect appeals and ongoing public debate.
“Against the backdrop of this, independent of what the courts decide, there is significant, ongoing political, local, civic opposition that will continue to be a really important factor in whether the pipeline gets built or not,” Ms. Young said.
“In a situation where the local opposition is so strong, at both governmental and popular levels, the question is not merely a legal one.”
southern resident orca habitat
near tanker routes
Tanker routes
Tankers would travel through the south
ern end of Georgia Strait, passing the
Gulf and San Juan Islands, before reach
ing the open Pacific.
Southern Resident
Orca critical habitat
Inbound tanker route
Outbound tanker route
B.C.
Strait of Georgia
Vancouver
Nanaimo
Vancouver Island
Juan de Fuca Strait
Victoria
S. Juan
Islands
Cape
Flattery
U.S.
Westridge Marine Terminal
Kinder Morgan forecasts that 37 vessels,
34 of which would be tankers, would call
on Westridge Marine Terminal a month
with the proposed expansion of the Trans
Mountain Pipeline. Currently eight ships a
month call on Westridge – five tankers and
three barges.
Western Canadian Supply for Pipeline Export vs. pipeline capacity
Edmonton
Proposed new line
Thousand barrels per day
BRITISH
COLUMBIA
Existing line
Kamloops
ALBERTA
Westridge
Sumas
Burnaby
canada
Ferndale
U.S.
Anacortes
Pipeline legend
Existing pipeline-active
Existing pipeline-reactivated
New pipeline
Terminal
Pump station
THE GLOBE AND MAIL, SOURCE: epa.gov, KINDER
MORGAN TRANS MOUNTAIN; mOFFATT & NICHOL
southern resident orca habitat
near tanker routes
Tanker routes
Tankers would travel through the southern end
of Georgia Strait, passing the Gulf and San Juan
Islands, before reaching the open Pacific.
Southern Resident
Orca critical habitat
Inbound tanker route
Outbound tanker route
B.C.
Strait of Georgia
Vancouver
Nanaimo
Vancouver Island
Juan de Fuca Strait
Victoria
S. Juan
Islands
Cape
Flattery
U.S.
Westridge Marine Terminal
Kinder Morgan forecasts that 37 vessels, 34 of
which would be tankers, would call on Westridge
Marine Terminal a month with the proposed
expansion of the Trans Mountain Pipeline. Cur-
rently eight ships a month call on Westridge –
five tankers and three barges.
Western Canadian Supply for Pipeline Export vs. pipeline capacity
Thousand barrels per day
Edmonton
Proposed new line
BRITISH
COLUMBIA
Existing line
Kamloops
ALBERTA
Westridge
Sumas
Burnaby
canada
Ferndale
U.S.
Anacortes
Pipeline legend
Existing pipeline-active
Existing pipeline-reactivated
New pipeline
Terminal
Pump station
THE GLOBE AND MAIL, SOURCE: epa.gov, KINDER
MORGAN TRANS MOUNTAIN; mOFFATT & NICHOL; ESRI
southern resident orca habitat near tanker routes
Tanker routes
Southern Resident
Orca critical habitat
Tankers would travel through the
southern end of Georgia Strait,
passing the Gulf and San Juan
Islands, before reaching the
open Pacific.
Inbound tanker route
Outbound tanker route
B.C.
Strait of Georgia
Vancouver
Nanaimo
Vancouver Island
Pipeline legend
Juan de Fuca Strait
Victoria
Existing pipeline-active
S. Juan
Islands
Cape
Flattery
Existing pipeline-reactivated
New pipeline
Terminal
U.S.
Pump station
Westridge Marine Terminal
Kinder Morgan forecasts that 37 ves-
sels, 34 of which would be tankers,
would call on Westridge Marine Ter-
minal a month with the proposed
expansion of the Trans Mountain
Pipeline. Currently eight ships a
month call on Westridge – five tank-
ers and three barges.
Edmonton
Proposed new line
Existing line
Kamloops
Rocky Mountains
Western Canadian Supply for Pipeline Export vs. pipeline capacity
ALBERTA
Vancouver
Island
BRITISH
COLUMBIA
Westridge
Sumas
Burnaby
canada
Ferndale
united states
Anacortes
Pipeline routes approximate
THE GLOBE AND MAIL, SOURCE: epa.gov, KINDER MORGAN TRANS MOUNTAIN;
MOFFATT & NICHOL; ESRI
Wendy Stueck