Copyright of the Daily Oil Bulletin 2018
B.C. Government Taking ‘Initial Action’ On Kinder Morgan Expansion
The B.C. government is taking “initial action” on its commitment to protect British Columbia's interests in the face of the proposed expansion of the Kinder Morgan Canada Limited pipeline and increased tanker traffic.
At a news conference today, Environment and Climate Change Strategy Minister George Heyman and Attorney General David Eby outlined both legal and consultation steps the government will take immediate action on.
“Our government made it clear that a seven-fold increase in heavy oil tanker in the Vancouver harbour is not in B.C.'s best interests,” said Heyman. “Not for our economy, our environment, or thousands of existing jobs. We will use all available tools to protect our coastal waters and our province's future.”
The British Columbia government has secured Thomas Berger as external counsel to government in the legal action related to Trans Mountain expansion pipeline.
“He [Berger] is a living example of modern First Nations law in Canada,” said Eby during a press conference, noting that an earlier Berger Supreme Court of Canada decision established the existence of First Nations title. “We think that his presence on this file will signal a couple of things: One our commitment to First Nations in Canada, both in the specific litigation but generally with respect to the UN Declaration on the Rights of Indigenous Peoples and the Truth and Reconciliation Commission recommendations that there is a new government.”
“We are committed to fighting for B.C.’s interests and it is government’s desire to seek intervenor status in legal challenges to federal approval of the pipeline expansion and increased oil tanker traffic off B.C.'s coast,” added Eby. “Mr. Berger will provide legal advice to government on the options for participation in legal challenges, and those hearings are scheduled to begin in federal court later this fall.”
The province said it will also fulfill its duty of meaningful consultation with indigenous people concerning this project, "including consultations regarding potential impacts to aboriginal rights and title — a responsibility that has been identified in a number of court cases. In particular, that duty must be fulfilled as consultation relates to environmental assessment certificate (EAC) requirements. Until these consultations are completed in a way that meets the province’s legal obligations, work on the project on public lands cannot proceed.”
“Going forward we will be reviewing policies to outline how our government expects to further meet our commitments to First Nations as well as to all British Columbians with regard to defending our air, land and water,” added Heyman. “This policy review will clarify government policy for decision-makers as they evaluate future permits and work plans.”
The province will continue to explore other tools to hold Kinder Morgan’s project plans “to the high standards of environmental protection and indigenous consultation that British Columbians expect.”
“When we talk about our legal obligation for meaningful consultation with First Nations, that includes all First Nations, including those that have signed benefits agreements,” said Eby in response to a reporter’s question about what it will say to First Nations who have signed agreements with Kinder Morgan and who are counting on that money for investments in their communities.
“Some of them have signed benefits agreements while at the same time not particularly favouring the pipeline but wanting to ensure that other people benefit if the pipeline proceeds,” he said. “Time will tell whether that happens but we not only want to consult with those Nations but we want to work with them and consult with them on a range of other economic opportunities.”
There are a number of permits issued but they cannot be acted upon until the company meets the requirements of the environmental assessment certificate issued by the previous government of British Columbia, said Heyman. Before they can begin work, the certificate requires them to complete environmental management plans —there are eight of them and three of them have been accepted to date.
“The other five have not been accepted because they have not, according to the Environmental Assessment Office, met the test of adequate consultation with First Nations,” he said. Until those plans are completed, Kinder Morgan will not be able to “put shovels in the ground” to start construction with the exception of some private lands and some right of way clearing, according to Heyman. “They need to have those work plans accepted.”
British Columbia needs to seek leave to intervene in the Federal Court case this fall in which a number of parties are challenging the decision of the federal cabinet to approve Trans Mountain and the government will be taking advice from Berger on its arguments, said Eby.
“We are bringing him up to speed as quickly as possible with the existing staff from within the attorney-general’s office. We are working closely with Mr. Berger on those matters as well as identifying additional opportunities for the province to make sure it is protecting its interests with respect to the project.”
B.C. decision ‘condemned’
The Canadian Association of Oilwell Drilling Contractors (CAODC) condemns the Government of British Columbia’s decision to take legal action in order to halt the Kinder Morgan Trans Mountain expansion pipeline project.
“The Trans Mountain expansion project has already been approved by the Government of Canada. Canadian case law has made it abundantly clear provinces cannot exercise their jurisdiction in ways that interfere with interprovincial transportation, including pipelines,” CAODC stated. “The final decision in this case explicitly resides with the federal government per the constitutional doctrine of paramountcy, and the approval has already been given to Kinder Morgan to proceed.”
The federal government must demonstrate leadership and prevent the government of British Columbia from holding the jobs and livelihoods of thousands of Canadians and British Columbians hostage, it said. Calling for new reviews and consultations on a project that has already been extensively reviewed and approved—at a significant cost to industry and taxpayers—is “preposterous, especially in light of the federal government’s constitutional obligations in this case.”
“The outcome of a new round of expensive and lengthy delays will be no different, and the only losers will be B.C. taxpayers, and thousands of Canadians who will have to wait even longer for an opportunity to work,” said CAODC president Mark Scholz. “Capital flight from Canada’s energy industry, made evident most recently by the decision by PETRONAS to abandon the Pacific NorthWest LNG project in B.C., is a direct result of the obstructionist attitude that some provincial and municipal governments have taken toward energy infrastructure projects.
“Canada’s future prosperity depends upon these projects being completed, and it is not the place of the B.C. government, nor any other provincial or municipal body, to hinder our collective progress as a nation.”