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British Columbia Trans Mountain clears legal hurdle as B.C. Supreme Court dismisses environmental certificate challenges

The Kinder Morgan pipeline expansion has cleared a legal hurdle after the B.C. Supreme Court dismissed a pair of challenges that sought to overturn the project’s provincial environmental certificate.

It was a victory for the B.C. NDP government that it would rather have lost.

The province, which is fighting the project in three other courtrooms, was forced to defend the environmental certificate granted to the Trans Mountain pipeline project by the previous B.C. Liberal government because its legal advisers said it has a responsibility to defend the integrity of the Crown.

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The NDP cabinet was advised that it had a legal duty to defend the former government’s decision, even though it opposes the project on the grounds that it poses an environmental risk to the coast.

Both the Squamish Nation and the City of Vancouver brought lawsuits against the province, arguing that B.C. had not met the minimum requirements for consultation and review when it approved Kinder Morgan’s pipeline project.

On Thursday, in a pair of judgments released simultaneously, B.C. Supreme Court Justice Christopher Grauer concluded the province did meet those standards, even though it mostly relied on material gathered for the federal government’s assessment of the project.

“There is no doubt that British Columbia could have done more, and had the opportunity to do so,” he wrote. However Justice Grauer found that “the consultation that took place was adequate, and … it was reasonable and lawful, in the circumstances of this case, for the provincial Crown to rely on the [National Energy Board] assessment as the assessment for the British Columbia process.”

He noted that the Federal Court of Appeal has yet to rule on a separate challenge to the project. “If the Federal Court of Appeal should rule in favour of Squamish’s position concerning the inadequacy of the NEB hearing, then what consultation occurred within British Columbia’s jurisdiction would become largely moot.”

The Court of Appeal is considering a challenge mounted by several First Nations, environmental groups and two municipalities to cancel Ottawa’s environmental certificate for the project. B.C. intervened in that case to oppose the project. As well, B.C. has filed a reference case asking the courts to approve regulations that would allow it to prevent Kinder Morgan from moving more oil through the pipeline. On a third front, B.C. is suing Alberta over a retaliatory trade action related to the pipeline dispute.

The provincial environmental certificate was granted in January, 2017, just months before the B.C. election. In that campaign, the NDP vowed it would use every legal tool available to stop the Trans Mountain project if it formed government.

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Premier John Horgan told reporters on Thursday that although his government had to fight Squamish and Vancouver in court, he agrees with their concerns about the risk to B.C.’s coast.

“Our view is that the risk-versus-reward equation when it comes to the transmission of diluted bitumen is all reward on one side, and all risk on the other,” he said.

Khelsilem, elected councillor and spokesperson for Squamish Nation, said he was disappointed that B.C. chose to fight.

“We are still waiting for them to follow through on their commitments to uphold Indigenous rights,” he said. “They are talking out of two sides of their mouth.”

The Squamish Nation and the City of Vancouver both have 30 days to decide whether they will appeal.

Meanwhile, Kinder Morgan has set a deadline of May 31 for Canada to clear away the risk posed by B.C.’s opposition to the project. In a brief statement, the company said it was “pleased with the court’s decisions affirming the level of review and consultation on this project.”

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The judge noted that the B.C. government had no option but to approve the project, because the pipeline falls under federal jurisdiction. That limited the province’s obligations to consult and review.

Justice Grauer noted that Ottawa’s jurisdiction also curtails what the current B.C. government can do to oppose the project, although the precise lines are not yet clear.

That will be decided by the reference case B.C. has filed in the provincial Court of Appeal. “Just how far British Columbia can go within its own constitutional competence in placing limits on a federal undertaking remains to be tested,” he wrote.

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