There is growing expectation, even among those who oppose Kinder Morgan’s $6.8-billion expansion of the Trans Mountain pipeline, that Justin Trudeau’s government will approve the project.
The prospect of a yes has been bolstered by a five-year, $1.5-billion marine protection plan announced by Prime Minister Trudeau in Vancouver on Nov. 7, intended to help allay fears of a tanker spill.
A yes on the project also was reinforced by a statement last week from Natural Resources Minister Jim Carr that the election of Donald Trump, who supports TransCanada’s proposed Keystone XL pipeline to U.S. Gulf Coast refineries, doesn’t reduce pressure on Ottawa to approve other pipeline projects to the B.C. and Atlantic coasts.
The Trudeau government must make a decision on the controversial Kinder Morgan project by Dec. 19, but indications are that a decision could come as early as next week.
But what if the Trudeau government does give approval?
Does that mean the project — which would finally give Alberta oilsands access to a west coast port and new Asian markets — will get built?
But it is going to be a struggle for Kinder Morgan, say industry, environmental and political observers and players.
There are some significant obstacles to the company, based in Houston, Texas, being able to start construction: lawsuits by First Nations and environmental groups, satisfying the B.C. Liberal government’s five requirements that include a fair share of economic benefits, and getting social licence from the public, particularly along the tanker route.
The National Energy Board (NEB) approved the project in June, but the B.C. government must also pass judgment.
Recent history shows these projects are difficult to build in British Columbia.
Enbridge’s $7.9-billion Northern Gateway project received approval from the Conservative government under Stephen Harper nearly two years ago but was stalled by First Nation opposition.
In June of this year, that project was dealt a major blow when the Federal Court of Appeal ruled the federal government had not adequately consulted First Nations.
This fall, Ottawa and Enbridge said they would not appeal. Still under consideration by the Trudeau government is a moratorium of oil tanker traffic on the northwest coast, which would kill Northern Gateway.
And Kinder Morgan’s struggles are likely to be amplified simply because the terminus in Burnaby — and the tanker route through Burrard Inlet — is in a heavily populated area unlike northwest B.C.
“You have to say that Kinder Morgan is plowing ahead like they are going to get this,” said Patrick Smith, a Simon Fraser University professor of political science, of the proposed 1,150-kilometre pipeline.
“Kinder Morgan might get it, but they are not going to get it without a fight. And the fight is going to be from the courts to wherever. There is a lot of road to cover before they get what they are hoping for,” said Smith, who is director of the university’s Institute of Governance Studies.
There are already seven challenges filed at the Federal Court of Appeal, including from the Tsleil-Waututh and Squamish First Nations on the coast, and the Kwantlen in the Fraser Valley and Coldwater First Nation in the Interior. The Tsleil-Waututh lost an earlier Federal Court challenge that the NEB review was unlawful. A second petition argues there was not adequate consultation. “We will do anything in our power to legally oppose this pipeline,” says Tsleil-Waututh councillor Charlene Aleck.
Environmental groups such as Living Oceans and Raincoast Conservation Foundation argue the NEB did not take into consideration the effect on endangered killer whales. The municipalities of Vancouver and Burnaby also have filed Federal Court challenges.
If the Trudeau government approves the project, more Federal Court challenges are expected, said lawyer Karen Campbell, who represents Living Oceans and the Raincoast Conservation Foundation.
That is also what happened with Northern Gateway.
In that case, the court first examined the challenges against the federal government’s decision.
A similar process would be expected for the Kinder Morgan project, said Nigel Bankes, chair of natural resources law at the University of Calgary and an expert on the NEB.
“As a matter of law, we will certainly see attacks. I don’t think (Trans Mountain) is going to be as vulnerable as Northern Gateway because the federal government clearly has tried to go back and address some of the issues that weren’t addressed in the case of Northern Gateway,” said Bankes. “I think the court is pretty clear, it’s not going to demand perfection.”
Court actions could affect the timing of the project, but the court is not likely to grant an injunction to halt work on the project while the cases are heard, he said.
Key concerns from First Nations, community groups and environmentalists include the expansion of the Alberta oilsands and increasing carbon emissions, and the risk of a spill in the ocean and on land. Oil tanker traffic would increase nearly seven-fold to about 400 visits a year to the Burnaby terminal, on the traditional territory of the Tsleil-Waututh.
The NEB has set conditions that include tug escorts. And Kinder Morgan will fund the majority of a $200-million upgrade to spill response that will include new bases, boats and 115 staff for the Western Canada Marine Response Corp.
Proponents include business groups, oil industry companies and sections of the labour movement. They say that while the world and Canada transitions away from fossil fuels to combat climate change, oil will be needed for decades.
This project makes sense, they say, because Canada is in a good position to ensure it is built and operated in a safe manner, at the same time providing jobs and economic activity.
An Angus Reid survey conducted in June following NEB approval showed British Columbians are divided over the project: 41 per cent saying the decision to approve was the right one, while 34 per cent said it was wrong. Another 25 per cent said they did not know.
The project is contending with a concerted effort by environmental and community groups who want the project stopped.
An umbrella group, Climate Convergence, organized a march and rally in downtown Vancouver last weekend that attracted thousands of protesters.
Rally organizers are encouraging opponents to sign a pledge of resistance and commit to support whatever action is necessary to stop the pipeline.
More than a dozen groups — including the Wilderness Committee and Burnaby Residents Opposing Kinder Morgan Expansion — are involved in an initiative called “For the Coast.”
On their website, the groups warn that if Trudeau wants “Clayoquot Sound 2.0” in the middle of Metro Vancouver, he’ll get it.
The series of protests in 1993 on the west coast of Vancouver Island, part of the so-called war in the woods, led to the conviction of 859 protesters and is considered one of the largest acts of civil disobedience in Canada.
Recently, Greenpeace, which is part of the For the Coast initiative, held a workshop in downtown Vancouver on civil disobedience.
Greenpeace climate campaigner Mike Hudema said he believes the same dynamics exist in British Columbia that are being seen in North Dakota. There, a continuing protest over a $3.7-billion oil pipeline grew to include thousands of people from the Standing Rock Sioux tribe, as well as other First Nations and activists, some from outside the country, who argue the pipeline could pollute water and sacred native sites.
The protests have included clashes with police that have resulted in arrests.
“You are going to see the same type of galvanization if the prime minister tries to ram this (Kinder Morgan) pipeline through,” said Hudema.
The Kinder Morgan project has already seen protests on Burnaby Mountain that led to arrests by police in 2014.
Last month, protesters marched on Parliament Hill. When they climbed over barricades, 99 people were issued citations by the RCMP for trespassing and detained briefly.
“The fight is just beginning on this,” said Western Wilderness campaigner Peter McCartney. “There are folks who are ready to escalate this.”
Kinder Morgan is sticking to its timeline, which if they get approval from the Trudeau government, would see construction start at the end of 2017, with completion slated for 2019.
Company representatives said there was no senior official who would give interviews in advance of the federal decision.
The company noted that president and CEO Ian Anderson had given several public speeches in the past month, outlining the status of the project, including in Vancouver in early November and in Kamloops last week.
At the Greater Vancouver Board of Trade on Nov. 3, Anderson said they had made a huge effort to listen to concerns, conducting hundreds of meetings with individuals, communities and First Nations. Changes that responded to concerns included more shut-off valves and thicker steel in more places on the pipeline, he said.
Anderson said he was frustrated that the voices of those who were supportive were not being heard.
He noted, for example, the company had signed letters of support with 40 First Nations.
However, Anderson added that should they get approval from the federal government, it didn’t mean they were at yes yet as the U.S.-based board of directors needed to approve a final investment decision.
“I don’t know if I get a yes from the federal government, I don’t know if I get a yes from (Premier) Christy Clark (on the province’s five conditions),” he told the board of trade audience.
“But what I am seeing today is a willingness to co-operate between and within governments unlike I have not seen in a long, long time.”