The B.C. government will be in court next month defending its approval of the expansion of the Kinder Morgan oil pipeline – even though it will seek, in another courtroom, to force Ottawa to withdraw its consent for the project.
Environment Minister George Heyman said in an interview on Tuesday his government will fight the Squamish Nation in B.C. Supreme Court over the provincial certificate of approval the BC Liberals granted.
It is an uncomfortable position for Mr. Heyman's NDP government, but he said he has no legal avenue to avoid defending a decision made by the previous cabinet.
The $7.4-billion Trans Mountain expansion project would triple the capacity of the Kinder Morgan pipeline that carries Alberta oil to the West Coast. It would increase the number of oil tankers travelling B.C. waters to overseas markets from a total of 15 in 2016 to an estimated 34 every month.
The NDP government assumed power in July and consulted government lawyers about how to reverse the province's approval.
The new cabinet was advised it is stuck with defending the provincial decision in the judicial review that the Squamish Nation requested.
The NDP government also has intervenor status in a case under way this week in which the Federal Court of Appeal is hearing 14 applications to overturn Ottawa's approval of the project.
The government asked Thomas Berger, a former judge with experience in resource and Indigenous issues, for a second opinion.
Mr. Berger, who is leading the province's case against Ottawa over the Kinder Morgan project, agreed with the government's in-house counsel: The province cannot change its position retroactively.
"While it appears to be inconsistent with our position, it is the duty of the Attorney-General, under Constitutional convention, and we think the risk of not fulfilling that duty is great," Mr. Heyman said.
Because the Squamish Nation alleges in its application that B.C. did not fulfill its duty to consult and accommodate First Nations, the honour of the Crown demands that B.C. defend its actions. If the Attorney-General did not mount a defence, Mr. Berger warned, the court could appoint an outside counsel – a so-called friend of the court – to represent the province, and B.C. would lose any influence over the outcome.
"But if people want to know what our real point of view is with respect to Kinder Morgan, we have said over and over again that we think it is a bad project for B.C.," Mr. Heyman said.
"We think it is against the interests of British Columbia and that's what Mr. Berger will be arguing in the Federal Court of Appeal on Thursday."
Squamish Chief Ian Campbell said the discrepancy is hard to fathom.
"When the NDP got into office, they were quite vocal about this issue," he said in an interview, noting that Premier John Horgan has promised to use every legal tool available to try to stop construction of the project. "The response we are getting now is that they will challenge our position. It makes us wonder where the province stands."
In January, Liberal premier Christy Clark announced that her government had reached a financial deal with Kinder Morgan worth as much as $1-billion over the next two decades, satisfying her demand that British Columbia get a fair share of economic benefits from the expansion of the Trans Mountain pipeline. With that deal, her cabinet granted approval for the project, which already had a green light from Ottawa. Three months later, on the eve of the provincial election campaign, the Squamish Nation filed an application for judicial review of the province's decision. In the application, the Squamish argue that B.C. had opposed the heavy oil pipeline project right up until the cash deal was signed with Kinder Morgan. When the government pivoted in January to support the project, it did not consult First Nations who fear a marine oil spill would affect their aboriginal rights and title.
Mr. Heyman said he agrees that the province should have a higher standard for Indigenous consultation than the former government offered. "But we can't apply that retroactively." He said the best chance to stop the project is through the Federal Court of Appeal, which is currently hearing 14 applications to overturn Ottawa's approval of the project.
Chief Campbell said the province has missed an opportunity to demonstrate its commitment to collaborate with First Nations. "It's unfortunate. It makes one question, is all their opposition to this project just posturing?"