For a time, it looked as if the B.C. Liberal government's political challenge with the Northern Gateway pipeline project would be removed with the federal government's promised ban on oil tankers off British Columbia's north coast.
Like a persistent stain, however, Northern Gateway is back on B.C. Environment Minister Mary Polak's desk for a decision.
Last fall, the federal Liberals made an election campaign commitment to impose a tanker moratorium that was supposed to nail the coffin shut on the Enbridge project: If there is a legal barrier to shipping oil from the proposed Kitimat terminal, there is no point building the $7.9-billion pipeline to carry Alberta oil sands bitumen to tidewater.
Transport Minister Marc Garneau has the task of formalizing the oil-tanker ban on B.C.'s north coast, but has only started consultations with First Nations that will likely prove more complex than his party's campaign strategists ever imagined. While there is strong First Nations opposition to Northern Gateway, the issue of consultation cannot be quickly swept aside with a few token meetings.
The B.C. government ceded its ability to shape the project in June, 2010, when it agreed to accept the National Energy Board's environmental review process as its own on major project proposals, including transmission lines, offshore oil development and pipelines.
In January, the province lost a court case over its attempt to abdicate decision-making authority to the federal government. The B.C. Liberals have all but rejected Northern Gateway but have never wanted to clearly say No, having made a virtue of being the party of Yes. Signing the equivalency agreement with Ottawa in 2010, Victoria hoped to avoid ever having to get to Yes or No on resource projects that spanned its borders.
The Supreme Court of B.C. concluded Ms. Polak must exercise her discretion and decide for B.C. whether Northern Gateway deserves an environmental certificate.
In an interview, Ms. Polak said the province will not appeal the decision. It means her government must conduct First Nations consultations on the project, while the B.C. Environmental Assessment Office is looking at how to evaluate Northern Gateway. It can use the federal assessment to make a recommendation, hold a new hearing or something in between. Then the office will make a recommendation to Ms. Polak and she will have to say Yes or No to the project.
Trickier still, the province will have to figure out how to navigate that same path on Kinder Morgan's Trans Mountain expansion project, which is still in the federal hearing process.
It is a mess to be sorting out this late in the game. Enbridge will argue that it has already been through an extensive regulatory process that has cost the company half a billion dollars, and should not have to face a second one. Kinder Morgan will also balk at a new hurdle just as it approaches a final federal ruling.
It is a mess of the province's own making, however.
In her judgment, B.C. Supreme Court Justice Marvyn Koenigsberg laid out clearly why Northern Gateway must be evaluated by the B.C. government.
"The proposed project, while interprovincial, is not national and it disproportionately impacts the interest of British Columbians," she concluded.
The project would install 660 kilometres of pipelines across B.C., spanning 850 waterways – and then there is the not-insignificant issue of a three-fold increase in oil-tanker traffic off the coast. The judge noted that the provincial government opposed the project during the NEB hearing, saying the impact of a spill on the province's pristine river environments would be profound.
"I find that the potential for significant adverse effects from the project has not been, nor ever was, disputed," Justice Koenigsberg wrote.
Given that, the judge could not fathom how B.C. could avoid exercising its authority. "To disallow any provincial environmental regulation over the project because it engages a federal undertaking would significantly limit the province's ability to protect social, cultural and economic interest in its land and waters."
That is, fundamentally, what we pay the folks in Victoria for.