B.C.'s Supreme Court has dismissed legal challenges to Kinder Morgan's Trans Mountain expansion project from the City of Vancouver and the Squamish Nation.
In a pair of rulings issued Thursday morning, Justice Christopher Grauer found the province of British Columbia acted reasonably in issuing an environmental assessment certificate to the company.
As Grauer pointed out in his opening remarks to both cases, the decisions are not the end of the legal hurdles facing the pipeline. They dealt strictly with the question of whether the province could defend its actions in light of the National Energy Board's approval of the project.
"This case is not about whether the TMX [Trans Mountain expansion project] should or should not go ahead. It is not about whether the TMX is in the national interest, or presents an unacceptable risk of environmental harm," Grauer wrote.
"This case is not about the adequacy of the consultation that was undertaken through the National Energy Board [NEB] and federal cabinet processes, nor does it resolve or define beyond currently settled law the constitutional limits on what either British Columbia or Alberta can or cannot do in relation to the project." The Trans Mountain expansion would triple the amount of oil being transferred from Alberta to the Kinder Morgan terminal in Burnaby, B.C. The number of oil tankers in the water would also increase to 35 from five each month.
The City of Vancouver claimed that in reviewing the Trans Mountain project, the province failed to engage in proper consultation and failed to conduct a proper environmental assessment. For its part, the Squamish Nation argued the province should have done a further assessment to make up for what it maintained was a "fundamental failure of the process of consultation and accommodation" by the NEB.
Limitations of the ruling
In regard to the Vancouver case, Grauer went to great pains to clarify what questions his court could and could not answer. He said the current provincial government's challenge to the federal government's authority was not part of the litigation before him, nor was the decision of the federal cabinet to approve the project.
"Did [the province] follow the law? Did it act with procedural fairness? Did it act reasonably and in compliance with its own statutory processes?" Grauer asked.
"These are the questions that the courts are equipped to answer, subject always to the considerable constraints imposed by the standards of review that the courts are obliged to employ."
As far as the concerns of the Squamish Nation are concerned, Grauer noted that the Federal Appeal Court is currently considering the adequacy of the NEB's Aboriginal consultation.
But the judge concluded that "adequate consultation did not require British Columbia to correct any perceived shortfall in the NEB process."
He said the province "considered the options constitutionally open to it, and proceeded accordingly."
"There is no doubt that Squamish is deeply disappointed in the approval of the TMX notwithstanding the conditions attached to that approval. It strenuously opposed the project and continues to do so," Grauer wrote.
"But ... I must concern myself not with the result but with the process."
On Thursday, the City of Burnaby also filed another action with the Federal Court of Appeal, asking for a judicial review of the energy's board's approval of the pipeline route. It argued the construction would do serious damage to many areas of the city.
Squamish Nation reacts
A posting on Facebook says the Squamish First Nation had just received the decision and was disappointed. But spokesperson Khelsilem pointed out that the decision was only about provincial approval and that the First Nation is also part of the challenge in the Federal Court of Appeal.
"We have a right to practice our culture, our way of life, and to continue our right to self-determination in our territories," Khelsilem wrote. "This is a right that we have never surrendered, and it is a right we will continue to defend."
The City of Vancouver also released a statement saying it was "disappointed" with the decision.
