B.C.’s NDP-Green alliance could turn to courts to disrupt Kinder Morgan pipeline, experts say

Share

An NDP government in B.C. could stop the Ottawa-backed expansion of the Kinder Morgan pipeline expansion by bogging the controversial project down in the courts until it is too costly for the company or politically risky for the federal Liberal government, experts say.

On Tuesday, as the BC NDP and Greens unveiled the details of their alliance to form a new government, the leaders of both parties committed to using "every tool" available to stop the Trans Mountain pipeline expansion and the resulting increase in tanker traffic. That would mean reversing the current BC Liberal government's approval, granted earlier this year, and ripping up a revenue-sharing agreement already signed with Kinder Morgan, which had planned to begin construction by the fall.

Prime Minister Justin Trudeau reiterated his government's commitment Tuesday to getting the pipeline built, arguing it is in the national interest, and Alberta's NDP Premier Rachel Notley said B.C. does not have the power to stop it.

Green Party Leader Andrew Weaver disagreed, saying one possible avenue to stop the project is launching a constitutional challenge on behalf of Indigenous people under Section 35 of the constitution, which has been found to protect the rights of First Nations to activities such as fishing, logging or hunting.

Eugene Kung, a Vancouver environmental lawyer representing the Tsleil-Waututh Nation in an unresolved legal challenge to the pipeline, said the province could use this approach to reverse the incumbent Liberal government's approval of Trans Mountain's expansion earlier this year by arguing there has not been enough consultation with First Nations communities.

"Certainly the constitutional requirement and duty to consult First Nations is a very big and important hammer," Mr. Kung said.

A provincial government led by the NDP could use this same rationale for not permitting Kinder Morgan to access its Crown land for activities such as logging, according to George Hoberg, a University of British Columbia political scientist who studies environmental and energy policy.

Such a tactic would likely add to the Trans Mountain project's current tally of 19 separate lawsuits, including 12 from First Nations communities, challenging the National Energy Board's review process, the federal government's consultations and the extent of provincial reviews.

Michael Byers, the Canada Research Chair in Global Politics and International Law at the University of British Columbia, said the project could be further delayed if the NDP orders a new provincial environmental assessment that – unlike the NEB approval – takes into account the climate impacts of downstream emissions.

That process could take two to three years, Prof. Byers estimated, introducing another complexity for investors in the pipeline. After news of the NDP-Green alliance broke Tuesday, Houston-based Kinder Morgan's Canadian unit fell 4.5 per cent on the Toronto Stock Exchange.

B.C. could also delay the project by introducing new health and safety legislation applicable to pipelines, Prof. Byers said. For example, a new law could examine the potential risk to aquifers or local communities and therefore introduce new requirements that the company would likely fight in court, he said.

"This is a really big issue, this pipeline, and if it goes through to litigation, it could take this all the way to the Supreme Court of Canada," he said. "So any delay introduces that longer term uncertainty and it could well be in seven, eight, nine or 10 years that the market for Canadian bitumen has declined or disappeared."

Kathryn Harrison, a political science professor who studies pipeline issues at the UBC, said the B.C. government wields greater power to stop this pipeline expansion in the political arena, rather than the courts.

"It's not clear that Mr. Trudeau trying to push this pipeline through – over opposition from a provincial government – would be a good political strategy for him in B.C., where he has [17] members of Parliament," she said, noting how some Vancouver-area MPs have treated the project with open ambivalence.

Pushing Trans Mountain aggressively is also unlikely to play well with Liberal supporters in Quebec, she said, where the party has many more MPs than in B.C. and ones who represent people opposed to the Energy East pipeline proposal going through their province.