VICTORIA – The City of Vancouver and Squamish Nation have lost legal challenges aimed at quashing an environmental assessment certificate issued by British Columbia for the Trans Mountain pipeline expansion.
In separate rulings issued Thursday, a B.C. Supreme Court judge found that the decision by the province’s environment and natural gas ministers to issue the certificate was reasonable and based on sufficient consultation with the First Nation.
“It was certainly open to the ministers to require more than they did with respect to public consultation and the assessment of relevant environmental considerations. The question is whether they were obliged to do so,” Justice Christopher Grauer wrote in his ruling dismissing the city’s challenge.
“Though it may have disappointed many that British Columbia did not take advantage of additional procedures available to it through the (environmental) assessment process, it does not follow from that choice … that British Columbia acted unfairly or irrationally.”
The legal challenges are just two of several hanging over Kinder Morgan Canada’s pipeline expansion, but the rulings were nonetheless hailed by the Alberta and federal governments as a step forward for the project.
There is one week left until the company’s imposed deadline to make a decision about proceeding with construction.
The Federal Court of Appeal has yet to rule on a consolidated challenge filed by numerous petitioners against the National Energy Board and federal cabinet approval of the project.
The City of Burnaby also filed another action with the Federal Court of Appeal Thursday, asking for a judicial review of the energy’s board’s approval of the pipeline route, arguing the construction would do serious damage to many areas of its city.
The B.C. government has also asked the province’s Court of Appeal to determine whether it can pass legislation that would require companies to get provincial permits before increasing the flow of bitumen through its lands.
The cases decided Thursday focused on the previous B.C. Liberal government’s issuance of an environmental assessment certificate in January 2017, about two months after the federal government gave the project the green light.
A central issue in Vancouver’s argument was whether B.C. erred when it primarily relied on the National Energy Board review. The city argued B.C. was required to conduct consultations on the project’s environmental, economic, social, heritage or health effects.
The city said in a statement that it was “disappointed” and would consider filing an appeal.
The Squamish Nation argued the B.C. government failed in its duty to consult the nation.
The judge said the consultation that took place was adequate. There’s no doubt that the Squamish Nation is disappointed with the approval of the pipeline, but Grauer said he must concern himself with the process used to approve the project, not the result.
“In my view, that approach was reasonable in the circumstances. Adequate consultation did not and, constitutionally, could not require British Columbia to redo the (National Energy Board) process.”
The nation also expressed its disappointment and said it too would consider an appeal. But it added it was awaiting the “more significant” ruling from the Federal Court.
“This decision does not change our position,” said Coun. Khelsilem in a statement.
“The tankers pass by three Squamish Nation communities on the Burrard Inlet and a marine spill could be catastrophic for our communities, our economy, and our home.”
B.C.’s minority NDP government inherited the legal challenges from its predecessor, putting it in the odd position of defending a pipeline it opposes.
The government took a “very limited position and made no submissions on the merits of the judicial review,” the judge wrote.
Premier John Horgan said Thursday that his government reviewed the cases after it came to power last summer and received legal advice that it had a responsibility to defend the Crown.
He noted his government has also joined the case against the federal cabinet’s approval of the project.
“I believe that’s the more relevant case,” he said. “Ultimately, our view is the risk versus reward equation when it comes to the transmission of diluted bitumen is all reward on one side and all risk on the other.”
Alberta Premier Rachel Notley said in a statement she was pleased.
“While other decisions remain before the courts, the record in the courts of (pipeline expansion) proponents is promising,” she said in a statement.
Natural Resources Minister Jim Carr also applauded the ruling.
“There’s more certainty today than there was yesterday.”
(Companies in this story: TSX:KML)
— With files from Dirk Meissner in Victoria and Mia Rabson in Ottawa