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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.

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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.

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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.

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“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.

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“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

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