Court challenges to stop TMX (Jan. 19, 2020)

[Written by Elizabeth May]

Good Sunday Morning!

Depending on where you are in Canada, you are likely dealing with one form of unpredictable extreme weather or another.  For those of us on southern Vancouver Island, folks in Winnipeg and St. John’s are entitled to think we are a bunch of wimps who cannot handle winter. But, honestly, as a Cape Breton girl used to fierce winds and howling blizzards, what we had here this week was just as cold and stormy as a bad snow day anywhere I have lived.  Here’s hoping you are reading this somewhere warm and cozy.

This morning, I am going to try to give you a decoder ring to the court cases swirling around the Trans Mountain (formerly Kinder Morgan) pipeline. The Supreme Court of Canada ruled unanimously on Thursday, dismissing the latest BC government case.  This was reported, in error, as though this was the last possible legal route to stop the pipeline. Link

Fortunately, that is not the case.  The case pursued by the BC government all the way to the Supreme Court of Canada was (in my view) their least winnable argument. Interprovincial transportation of anything is assumed to be federal jurisdiction.  To assert that the pipeline is federal, but the province can regulate what’s in it was a stretch. The fact it was, at best, a long shot is underscored by the fact the Chief Justice made such an unusual and abrupt ruling from the bench immediately after the arguments.

I suspect that the province went to the wall on this case in order to make it look as though the Horgan administration was living up to its promise to “use every tool in the toolbox”.  In fact, the BC government has stopped caring about blocking TMX. There are stronger courses of action that are being ignored.

For example, the BC government under Christy Clark agreed with former PM Stephen Harper that no provincial review was required.  Clark’s Liberals agreed to rely solely on the strength of the federal review by the National Energy Board. Once that review was slammed by the court and the permits quashed, the BC government should have announced the former federal-provincial agreement was moot and the BC government would pursue its right to assess the impacts of the project.  So, once the Federal Court of Appeal struck down the permits in August 2018, many of us urged Environment Minister George Heyman to start a BC environmental assessment process. I believe they still have that option.

Another indicator that BC has put away its “tool kit” is that the BC government has ignored its ability to intervene as a party in support of litigants trying to stop the project. Whereas in the first round of court challenges, the NDP government in BC injected itself as an intervenor and party supporting challenges to TMX, now they are MIA.


So what are the remaining cases?

They fall into two categories: those challenging the sufficiency of the consultations with First Nations, and those pursuing the protections of the marine environment, particularly the highly endangered Southern Resident Killer Whales. In September, the Federal Court of Appeal was asked to allow both kinds of challenges to go forward.

The court allowed most of the appeals that related to consultations, approving requests from the Coldwater Indian Band, Squamish Nation, Tsleil-Waututh Nation, and a coalition of First Nations in B.C.’s Fraser Valley. (Since then the Upper Nicola Band, the Stk’emlupsemc Te Secwepemc announced they had made deals with TMX and were withdrawing from the case). Link

But the court rejected most of the appeals related to the environmental impacts. These included requests from the Tsleil-Waututh Nation as well as the challenges from Raincoast Conservation Foundation and Living Ocean, both represented by lawyers from Ecojustice – including brilliant constituent and Pender Island resident, Margot Venton.

In early November, all these groups filed a request with the Supreme Court of Canada for leave to appeal the September rejection by the Federal Court.  That request is still pending – as is the consultation hearing with the federal Court of Appeal. Link

So the court challenges are a long way from over.  Much remains to be tested.

In the meantime, one of the more substantive changes is that the pipeline is no longer owned and promoted by Texas fossil fuel pipeline owners. It is owned by us.  That makes it even more galling. Recently a local indigenous leader told me her community has been “bombarded” with offers of millions to “abandon our principles and accept the pipeline.”

It is unconscionable that there are millions to pressure First Nations to cave to the pipeline, but not enough to ensure clean drinking water.


The conflict on Wet’suwet’en territory deserves more space this morning.  Just to say BC Green Interim leader and my MLA, Adam Olsen, visited the Wet’suwet’en leadership this weekend to see how we can de-escalate tensions, while Green MP Paul Manly is making his way to the blockade – a 5 kilometre hike in minus 40 today to communicate the opposition of the Green Party of Canada to the Coastal Gas pipeline and offer our solidarity with the hereditary chiefs standing on their rights to say no.


Thanks and love,


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