Court allows appeal on pipeline certificate, says B.C. needs to reconsider

Trans Mountain said the court decision means the environmental assessment certificate “is valid and remains in place.” (File Photo: Trans Mountain/Facebook)

VANCOUVER — The British Columbia government has been ordered by the province’s highest court to reconsider its environmental assessment certificate allowing the expansion of the Trans Mountain pipeline.

In challenges by the Squamish Nation and the City of Vancouver, the B.C. Court of Appeal ruled the province’s approval of the certificate was based on the original report from the National Energy Board, which was later quashed by the Federal Court of Appeal.

After the National Energy Board reviewed the project for a second time, the federal government approved the pipeline expansion again.

The Appeal Court says in its decision released Tuesday that in light of changes to the original report of the energy board when it reconsidered the project, provincial approval also needs to be reconsidered.

The province’s former B.C. Liberal government approved the expansion with 37 conditions, while relying on an agreement with the energy board that would stand for a provincial environmental assessment.

The three-judge panel said in its unanimous decision that through no fault of the provincial government, what is now Canada’s environmental assessment of the pipeline was not the same assessment used when B.C. approved its certificate.

The court dismissed other claims by the city and the Squamish Nation including that the province failed to sufficiently consult with Indigenous groups.

The Federal Court of Appeal agreed earlier this month to hear arguments from First Nations that argue they were improperly consulted before the federal government approved the pipeline expansion for the second time.

The City of Vancouver says in a statement that it’s pleased with the court’s partial approval of its appeal. One of the reasons the city pursued the case was the Federal Court of Appeal’s decision that overturned Ottawa’s approval of the project, which led the energy board to reconsider the project and issue a new report.

“The city remains of the view that the Trans Mountain Pipeline project would have significant environmental impacts, including the unacceptable risk of oil spills and increased greenhouse gas emission related to the project at a time when the world needs to reduce emissions,” it says.

B.C. Environment Minister George Heyman was not immediately available for comment.

Trans Mountain said the court decision means the environmental assessment certificate “is valid and remains in place.”

“Trans Mountain is continuing with construction and planning of the expansion and is committed to building the expansion in a manner that minimizes impacts to the environment and respects the values and priorities of Canadians,” it said in an email statement.

It says the court decision allows the B.C. government to determine whether the energy board’s second review of the project impacts provincial conditions on the pipeline expansion.

“The court affirmed the province is limited to making adjustments or additions to the provincial marine conditions and must do so within the limited scope of provincial authority over marine issues,” Trans Mountain added.

The project would triple the capacity of an existing pipeline from Alberta’s oilpatch to a terminal in Burnaby, B.C. The federal government bought the existing pipeline and the unfinished expansion work for $4.5 billion last year, promising to get it past the political opposition that had scared off Kinder Morgan Canada from proceeding.

Squamish Coun. Khelsilem said while the court did not agree with its argument that the environmental assessment certificates should be quashed, the decision means the province will now have to decide if it will apply new conditions on the project.

The Squamish Nation is ready to provide input on environmental conditions that fall within provincial jurisdiction, such as issues related to the crossings of waterways like creeks, rivers and lakes, he said.

“I think this represents a new opportunity for the province to step up and we’re looking for some leadership,” Khelsilem said.

Eugene Kung, a staff lawyer with West Coast Environmental Law, said he doesn’t believe the decision gives B.C. any more power but in terms of freeing it from its agreement to base its certificate on the energy board’s environmental assessment, it allows the province to make conditions on the project more strict.

“What it does give B.C. is another opportunity to enhance or improve the conditions based on what they themselves have said they’ve seen are the flaws or concerns,” he said, citing spill risk, cleanup and risks to human health as examples.

“As long as those are within provincial jurisdiction, it’s my view that they’re fair game,” he says.

The ruling will also likely delay the project further, as any construction permits that rely on the B.C. certificate could be called into question, he said.