B.C.’s environmental approval of the controversial Trans Mountain pipeline must return to the provincial government for reconsideration as a result of changes in conditions that led to the approval certificate being granted, B.C.’s court of appeal ruled Sept. 17.
And, said B.C Environment Minister George Heyman, Victoria will not use the two rulings to halt the pipeline despite campaign promises to "use every tool in our toolbox to stop the project from going ahead."
Rather, he said, the province will review the rulings to determine how to move forward.
"We're not able to stop the project, Heyman said. "That's in federal jurisdiction. Only the Federal Court of Appeal can stop this project."
Justice Mary Saunders, writing the unanimous decision, said, “I would not quash the certificate but would remit the matter to the ministers to permit them to reconsider the certificate’s conditions.”
She said those conditions have changed in the wake of the Federal Court of Canada’s decision in Tsleil-Waututh Nation v. Canada quashing the federal approval of the project by the National Energy Board (NEB) – which has since changed its name to the Canada Energy Regulator (CER) – and the federal cabinet.
Ottawa re-approved the $7.4 billion pipeline in June after purchasing it from Kinder Morgan in early 2018 for $4.5 billion.
In January 2017, British Columbia’s Liberal government issued a 37-condition environmental assessment certificate for the project. The government did so relying on a so-called equivalency agreement with the NEB that could stand in for a provincial assessment in the interests of efficiency.
That approval had adopted conditions recommended in the NEB report on the project.
It is the conditions that the court of appeal has remitted to the Environmental Assessment Office for review.
Heyman said that, as it reviews the court decisions, the government would do so with a view to protecting B.C.'s coastline, the environment, jobs and tourism.
He conceded that while the provincial government still believes "this is a wrong-headed project and bad for British Columbia," much of the situation is out of B.C.'s control and in federal hands.
"We're going to take the time to review the conditions within our jurisdiction," the minister said, adding there is no legal requirement for a British Columbia certificate for the project to move forward.
A Trans Mountain statement said the company is continuing with project construction and planning "is committed to building the expansion in a manner that minimizes impacts to the environment and respects the values and priorities of Canadians."
The court suggested Victoria review the amendments to the CER Reconsideration Report to determine whether they impact the provincial conditions that are placed on the project. The statement said the court affirmed B.C. is limited to making adjustments or additions to the provincial marine conditions and must do so within the limited scope of provincial authority over marine issues.
"The court ruled that the Environmental Assessment Certificate is valid and remains in place,” Trans Mountain said.
Two decisions come on appeal of lower court rulings in which the Squamish Nation and the City of Vancouver both applied by petition for an order setting aside the B.C. government’s decision to issue an environmental assessment certificate for the doubling of the pipeline to move petroleum products from Alberta to the B.C. coast.
Justice Christopher Grauer dismissed the petition last year.
The city said in a statement it is pleased the court has partially allowed its appeal.
“As a result of today’s decision, the province is required to reconsider the conditions in the environmental assessment certificate based on the changes to the original report of the NEB,” the statement said. “The city remains of the view that the Trans Mountain Pipeline project would have significant environmental impacts, including the unacceptable risk of oil spills and increased greenhouse gas emissions related to the project at a time when the world needs to reduce emissions.”
The Squamish First Nation said Victoria must heed the court decision and conduct a comprehensive environmental review of the project.
“Premier Horgan and his government need to set the bar higher and rethink their approach to the (Trans Mountain) project and truly respect indigenous rights by jointly reviewing with the Squamish Nation and other concerned First Nations whose territories would be directly impacted by the pipeline expansion. There’s a lot of talk of reconciliation at the provincial level, and this is a critical opportunity for the province to put its words into action,” said Khelsilem, a Squamish Nation councillor and spokesperson.
Khelsilem said the project poses significant risks to the Nation’s unceded territory, the community’s reliance on healthy marine and aquatic environments and to the existence of the southern resident killer whale—a species of cultural importance to the Nation that is recognized to be in a critical state.
Since Grauer’s decision, the Federal Court of Appeal released its judgment in Tsleil-Waututh.
In Tsleil-Waututh, the federal court identified deficiencies in two areas of concern: one being the NEB assessment of the risks inherent to marine shipping and certain environmental effects of the expansion project, and the second being the adequacy of Canada’s consultation process with Indigenous groups in respect to its decision to approve the project.
The court said marine shipping associated to the project is expected to increase nearly seven-fold from current levels.