Federal Court of Appeal Releases Decision on Trans Mountain Expansion

Federal Court of Appeal Releases Decision on Trans Mountain Expansion

Federal Court of Appeal Releases Decision on Trans Mountain Expansion

The company temporarily halted construction earlier this year, saying it was concerned that feuding between the governments of Alberta and British Columbia, which sided with environmental groups fiercely opposed to the project, created undue political risks.

In the wake of the Federal Court's bombshell decision to quash cabinet approval of the Trans Mountain expansion project, Alberta Premier Rachel Notley is pulling her province out of the national climate change plan. The expansion initially was forecast to cost C$7.4 billion ($5.9 billion) to triple capacity to 890,000 b/d.

The Federal Court of Appeal ruled that the National Energy Board (NEB) regulator wrongly narrowed its review of the project to exclude related tanker traffic. Canada (Attorney General), No. A-78-17.

The court combined into one case almost two dozen lawsuits calling for the energy board's review to be overturned.

"The unjustified exclusion of marine shipping from the scope of the project led to successive, unacceptable deficiencies in the [NEB's] report and recommendations".

"We see now that they failed to even do the basic, the basic work in hitting their own standards for the consultation process", said Scheer.

"Canada failed in Phase III to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns", the decision reads.

"The big takeaway is the duty to consult (indigenous people) is still the most important step in any major project", said Andrew Leach, associate professor of business economics at University of Alberta.

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The ruling will force the National Energy Board to redo its review of the pipeline and the government to restart consultations with the Indigenous groups.

At a press conference in Toronto hours after the decision was released, Morneau said the Liberals had inherited a "flawed" project assessment process from the previous Conservative government, and had "set out to improve that process. It means upholding our commitments with Indigenous peoples and it means responsibly protecting Canada's and Canadians' investment". Secondly, the government did not establish a dialog with First Nations to understand and address their concerns regarding the pipeline's impacts.

With as few as 75 southern resident orcas left, the population will be unsustainable if the project proceeds, said Paul Paquet, senior scientist with the Raincoast Conservation Foundation. You can nearly hear the sighs of relief from the chief executives of utilities and pension plans across the country, who were all offered a chance to buy into Trans Mountain over the past few years, and who all said no to Kinder Morgan. "The court decision was not a condition of the transaction between KML and the federal government".

In a significant victory for indigenous groups and environmentalists, Canada's most controversial oil pipeline project has been suspended.

The ruling was cheered by opponents of the nation's largest resource project in decades, while Prime Minister Justin Trudeau's administration suggested it had been dealt a temporary setback and vowed to carry on. "The courts have upheld Canada's laws in the face of a government unwilling to do the right thing".

While the project could allow Alberta to get its bitumen to markets in Asia and reduce its reliance on the U.S. market, there has been opposition over the potential for oil spills and the impact that a dramatic rise in tanker traffic could have on the region's southern resident killer whales, a population already on the knife edge of extinction. "Respecting indigenous rights requires ensuring free, prior and informed consent, not continuing Canada's colonial legacy of privileging extractive industry".

Morneau said it also aimed to reassure foreign investors, and advance Canada's climate goals. "Building new, long-lived pipelines in support of ever-growing oil production and export is wholly incompatible with the rapid transition away from fossil fuels required". It also means that the construction that has already began in central Alberta must cease.

October 26, 2017: Kinder Morgan Canada asks NEB to allow work to begin despite a failure to obtain municipal permits from the City of Burnaby.

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