VANCOUVER — Environment Minister George Heyman says British Columbia can't stop the Trans Mountain pipeline expansion project but will use a court-ordered review of its environmental assessment certificates to protect the environment and coastal economies.
In a decision released Tuesday, the B.C. Court of Appeal ordered the provincial government to reconsider the certificates because they were granted on the basis of assessments by the National Energy Board that have since been overturned and completed again with new conditions.
Heyman told reporters in Vancouver that the province is working on a plan to conduct the review and consult with Indigenous communities.
“It's not our goal to use this court decision as a tactic,” he said, adding that any power to stop the project lies with the federal courts and government.
“We believe this is a wrongheaded project, we believe it's bad for British Columbia, but that decision was taken by the federal government. We're exercising every jurisdiction we can to defend British Columbia's environment, our coast, our jobs with regulations and with environmental assessment conditions as appropriate.”
Heyman said the project does not legally require the certificate from B.C. in order to proceed.
A former B.C. Liberal government relied on a full environmental review by the National Energy Board when it approved the pipeline expansion with 37 conditions.
Since then, the Federal Appeal Court set aside the energy board's original report, citing inadequate consultation with Indigenous communities among its reasons. A new review was ordered, new conditions were added and the federal government approved the pipeline expansion for a second time.
The Squamish Nation and City of Vancouver challenged the province's certification of the project and the Appeal Court says in its decision Tuesday that in light of changes to the original report of the energy board when it reconsidered the project, provincial approval also needs to be reconsidered.
In its unanimous decision, the three-member panel also dismissed other claims by the city and the Squamish Nation including that the province failed to sufficiently consult with Indigenous groups.
The Federal Court of Appeal agreed earlier this month to hear arguments from First Nations that argue they were improperly consulted before the federal government approved the pipeline expansion earlier this year.
Heyman said the province should announce in “as reasonable amount of time as we can manage” the process it plans to use to follow the court's instruction.
“We want to do this right and we'll take the time to design a process that is required to do this right,” he said.
Alberta Energy Minister Sonya Savage warned any potential delay in the construction of the pipeline would be “deeply disturbing.”
“Nothing in today's ruling should delay the current construction schedule,” she said on Twitter.
“Given the additional work done by the federal government since 2017, we see no reason that the B.C. government shouldn't be able to quickly reissue its approval.”
She said “death by delay” cannot be allowed to succeed.
The City of Vancouver says in a statement that it's pleased with the court's partial approval of its appeal.
“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 emission related to the project at a time when the world needs to reduce emissions,” it says.
Trans Mountain said the court decision means the environmental assessment certificate “is valid and remains in place.”
“Trans Mountain is continuing with construction and planning of the expansion and is committed to building the expansion in a manner that minimizes impacts to the environment and respects the values and priorities of Canadians,” it said in an email statement.
It says the court decision allows the B.C. government to determine whether the energy board's second review of the project impacts provincial conditions on the pipeline expansion.
“The court affirmed the province 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,” Trans Mountain added.
The project would triple the capacity of an existing pipeline from Alberta's oilpatch to a terminal in Burnaby, B.C. The federal government bought the existing pipeline and the unfinished expansion work for $4.5 billion last year, promising to get it past the political opposition that had scared off Kinder Morgan Canada from proceeding.
Squamish Coun. Khelsilem said while the court did not agree with its argument that the environmental assessment certificates should be quashed, the decision means the province will now have to decide if it will apply new conditions on the project.
The Squamish Nation is ready to provide input on environmental conditions that fall within provincial jurisdiction, such as issues related to the crossings of waterways like creeks, rivers and lakes, he said.
“I think this represents a new opportunity for the province to step up and we're looking for some leadership,” Khelsilem said.
Eugene Kung, a staff lawyer with West Coast Environmental Law, said he doesn't believe the decision frees B.C. from it from its agreement to base its certificate on the energy board's environmental assessment, but it allows the province to make conditions on the project more strict.
“What it does give B.C. is another opportunity to enhance or improve the conditions based on what they themselves have said they've seen are the flaws or concerns,” he said, citing spill risk, cleanup and risks to human health as examples.
“As long as those are within provincial jurisdiction, it's my view that they're fair game,” he says.
The ruling will also likely delay the project further, as any construction permits that rely on the B.C. certificate could be called into question, he said.
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