The Federal Court of Appeal’s decision to quash approval of the Trans Mountain pipeline expansion will reverberate in this country for months, if not years. And it is certain to have a consequential impact on two approaching elections – nationally and in Alberta.
Prime Minister Justin Trudeau and, through him, Canadian taxpayers, now own a pipeline that may not be built for years, if ever. While Ottawa will make all the appropriate noises about addressing the consultation shortcomings and other issues identified by the court, don’t be misled: This verdict has the effect of starting over again on many fronts.
Project proponent Kinder Morgan Inc., which decided to sell the endeavour to the federal government, must be incredibly relieved. That move, which also made the company a tidy profit, too, looks genius now. The suits down in Houston were surely high-fiving all over the place.
For those who doubted the power evident in an earlier ruling by the Supreme Court of Canada obligating governments and others to consult with First Nations on projects that traverse their traditional territories, distrust the importance of that pronouncement no more. Enbridge’s Northern Gateway pipeline effectively died over the same matter. Now, that failure to meaningfully consult with Indigenous groups has claimed a second pipeline, for now anyway.
The decision was also a blow to the often-maligned National Energy Board. The court ruled that in its appraisal of the project, the NEB “unjustifiably” omitted the potential negative consequences an increase in tanker traffic could have on the local environment. “The unjustified exclusion of project-related marine shipping from the definition of the project rendered the board’s report impermissibly flawed,” the court ruled. And the three judges said that as a result, the federal government could not rely on the NEB’s final report and recommendations when assessing “the project’s environmental effects and the overall public interest.”
What a colossal, costly screw-up by the NEB. Given the magnitude of this error, the public deserves a full explanation of what happened here because it represents a huge, start-all-over-again setback for the agency.
There is no one more hurt by this decision than Alberta Premier Rachel Notley. Courts and tribunals had rendered decisions in 17 consecutive cases before this one, with each one a victory for project proponents. But those didn’t matter. This was always going to be the one that was most important.
Just a few months ago, the day Ottawa announced it was buying the pipeline, Ms. Notley held a news conference that mirrored, in tone at least, George W. Bush’s infamous “Mission Accomplished” speech aboard an aircraft carrier in 2003. In it, he effectively claimed victory in Iraq, a war that would continue for years after. In May, Ms. Notley proclaimed: “Pick up those tools, folks, we have a pipeline to build.” It now looks like another boast that was a tad premature.
Ms. Notley desperately needed Trans Mountain if she was going to have any hope of beating Jason Kenney and the United Conservative Party in next year’s election and she knows it. Now, Mr. Kenney will be able to say that all of the environmental concessions the NDP made in a quid pro quo agreement with Mr. Trudeau’s Liberals – a pipeline in exchange for shutting coal plants, introducing a carbon tax, capping oil sands emissions – were for naught. There will not be shovels in the ground by the time the vote in Alberta rolls around and there is likely no one happier about that than Mr. Kenney himself.
And it won’t help Mr. Trudeau, either. He expended enormous political capital in his decision to purchase the pipeline. Now, that gamble looks riskier than ever. He may characterize it as merely a setback that can be addressed, but I’m not so sure. Until all legal hurdles have been cleared – if that ever happens – his decision will look like a reckless wager.
For B.C. Premier John Horgan, the ruling represents a tremendous victory. The Premier had consistently argued that the NEB hadn’t properly considered the impact an increase in oil tanker traffic would have on the environment and he was right. Mr. Horgan hired legendary lawyer Thomas Berger to represent the provincial government as an intervenor in this case. It was Mr. Berger’s view that Ottawa had failed to properly consult First Nations, in an almost identical way the federal government had neglected to with Northern Gateway.
He was right.
Not long after Thursday’s ruling came down, shareholders of Kinder Morgan Canada held a vote in Calgary on the sale of the pipeline. It took less than three minutes to approve. It likely took a lot longer for the applause and laughter to die down.