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A Legal Toolbox to Defend BC from the Kinder Morgan Trans Mountain Pipeline & amp; Tankers Project June 2017

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A Legal Toolbox to Defend BC from the Kinder Morgan Trans Mountain Pipeline & Tankers Project

Kinder Morgan Trans Mountain project, BC Government
Author(s):

Jessica Clogg, Eugene Kung, Gavin Smith, Andrew Gage

Summary:

The historic NDP/Green alliance in British Columbia has committed to “Immediately employ every tool available to the new government to stop the expansion of the Kinder Morgan pipeline, the seven-fold increase in tanker traffic on our coast, and the transportation of raw bitumen through our province.”

In light of this commitment, many people have been asking: “What can BC do about Kinder Morgan?”

In our opinion, the relevant question is not: “Does BC have tools to stand up to Kinder Morgan?” Rather, it is: “What are the best tools for BC to stand up to Kinder Morgan?”

This brief outlines concrete legal options that a new government could use with respect to Kinder Morgan’s Trans Mountain pipeline and tankers project.

Publication Date:

June 2017

Full text:
 A Legal Toolbox to Defend BC from the Kinder Morgan Trans Mountain Pipeline & Tankers Project
The historic NDP/Green alliance in British Columbia, which is poised to form BC’s next provincial
government, has committed to:
Immediately employ every tool available to the new government to stop the expansion of
the Kinder Morgan pipeline, the seven-fold increase in tanker traffic on our coast, and the
transportation of raw bitumen through our province.
In light of this commitment, many people have been asking: “What can BC do about Kinder
Morgan?”
This question raises important issues that in many ways eclipse a single pipeline and tanker
project: global climate change, Indigenous rights and reconciliation, and Canadian federalism, to
name a few.
In our opinion, the relevant question is not: “Does BC have tools to stand up to Kinder Morgan?”
Rather, it is: “What are the best tools for BC to stand up to Kinder Morgan?”
This brief outlines concrete legal options that a new government could use with respect to Kinder
Morgan’s Trans Mountain pipeline and tankers project. It is not a laundry list – while there are
many tools available, we have focused here on what we believe are the best tools that are:
a) available immediately; and
b) in our view the most likely to withstand legal and political challenges.
2017 Confidence and Supply Agreement between the BC Green Caucus and the BC New Democrat Caucus, at 2.c.
Photo: BC NDP
LEGAL BACKGROUND
1) The Province of British Columbia has the constitutional authority to:
• conduct its own studies and assessment(s) of projects like the Trans Mountain pipeline
and tankers project, even if the process requirements imposed have the potential to
result in a “no”; and,
• attach conditions related to areas of provincial authority that go beyond those imposed
by the federal government in its approval of the project.
2
2) The Province of British Columbia also has a constitutional and moral obligation to fulfill its
duties to consult and accommodate potentially affected First Nations before issuing provincial
approvals and permits required for the Trans Mountain project.
3
3) Furthermore, the Province of British Columbia: (i) cannot authorize an unjustifiable
infringement of Aboriginal title or rights; and (ii) must, where a claim is particularly strong take
steps to preserve the underlying Aboriginal interest pending final resolution of the claim.
• In this context, proceeding with the BC approval – which was granted in January 2017 –
could make BC vulnerable to further legal challenges.
4) The Province can set aside existing provincial approvals and prohibit future provincial approvals
until additional process steps and/or conditions – related to areas of provincial authority – are
fulfilled. Such legal steps can, in our opinion, be taken without offending constitutional provisions
related to the division of powers between the federal and provincial governments.
• This is particularly relevant because of the high-profile problems with the federal
National Energy Board (NEB) process, and the federal Crown’s failure to meet its
constitutional duties to First Nations, as set out in 10 legal challenges brought by First
Nations to the federal approval and NEB recommendation.
5) An outright final rejection or prohibition of the Trans Mountain project by the provincial
government could result in a legal challenge by the federal government on division of powers
grounds,
which would then take many years to resolve in the courts.
• However, we note that if multiple legal challenges
to the federal approval of the Trans Mountain project by First Nations and others are successful in setting the federal
approval aside, then the operational conflict between the federal and provincial decisions
would be removed. This would eliminate one basis for a potential legal challenge by the
federal government.
• The potential of a future legal challenge, which may not occur, should not discourage BC
from taking principled steps to safeguard matters squarely within provincial jurisdiction
(such as drinking water, health and safety, provincial lands and resources etc.), and to
meet its own constitutional duties to First Nations.
Coastal First Nations v British Columbia (Environment), 2016 BCSC 34 at paras 51-56, 71-74.
In R v. Sparrow [1990] 1 SCR 1075, the Supreme Court of Canada recognized that section 35 is a limit on both federal and provincial
powers. More recently, Grassy Narrows First Nation v. Ontario (Natural Resources), [2014] 2 SCR 447 and
Coastal First Nations, supra have confirmed that a province must satisfy the duty to consult First Nations.
See Tsilhqot’in v. British Columbia, 2014 SCC 44 at para 91.
See:
See e.g., Canadian Western Bank v. Alberta, 2007 SCC 22;
British Columbia (Attorney General) v. Lafarge Canada Inc., [2007] 2 S.C.R.86, 2007 SCC 23, Coastal First Nations, supra.
See:
LEGAL TOOLBOX
The provincial government has the authority and obligation to meet its duties to First Nations,
and to protect the interests of British Columbians from this risky project. Below we have set out
four high-potential legal approaches for doing so. They are not mutually exclusive and in some
cases may be mutually enforcing.
Regardless of which legal approach is used, we recommend that the provincial government:
a) Add further processes and conditions related to matters within provincial jurisdiction;
b) Prohibit the issuance of any provincial approvals or permits to Trans Mountain, and
include a provision that any such approvals (i.e., that may have already been issued) are
without effect until the processes and conditions have been satisfied; and,
c) Establish a requirement, with reference to the United Nations Declaration on the Rights
of Indigenous Peoples, that the proponent demonstrate to the Province’s satisfaction
that every First Nation whose territory is potentially impacted by the Trans Mountain
project, including by the risks of spills or malfunctions from either pipelines or tankers,
has provided its free, prior and informed consent for the project (FPIC).
Approach 1:
Cabinet order under section 7 of the Environment and Land Use Act encompassing points a-c above Section 7 of the
Environment and Land Use Act empowers Cabinet to make any order considered “necessary or advisable respecting the environment or land use.” Such an order applies despite any other Act, and a Minister, ministry or agent of the Crown specified in the order may not exercise its power under any other Act or regulation except in accordance with the order.
• Action: Make a Cabinet order establishing additional conditions and processes, beyond
those currently set out in Trans Mountain’s environmental assessment certificate, which
must be satisfied before relevant provincial permits can be granted.
• Effect: This approach does not depend on overturning the existing environmental
assessment certificate per se, but could suspend it until further conditions are met
and processes occur. A condition requiring FPIC from potentially impacted nations
is particularly relevant, as it aligns with commitments also made by the federal
government.
Approach 2:
Court order setting aside the provincial environmental assessment certificate
This approach would involve reviewing the current legal challenges to BC’s Trans Mountain
approval, and issuing new instructions to Crown counsel, on the basis that the former government
did not meet its constitutional duty to consult and accommodate, cannot justify potential
infringements of Aboriginal title and rights from the project, and must take steps to preserve
underlying Aboriginal interests while claims are resolved.
• Action: Instruct counsel for British Columbia in Squamish Nation v British Columbia
(Minister of Environment) to review the application filed and relief sought by the
Squamish Nation, in light of the position of the new government. If the Province of
BC concludes that the previous government did not fulfill its constitutional duties,
then consider seeking a court order based on points of agreement with the Squamish
Nation. Relief sought by Squamish includes overturning the provincial environmental
assessment certificate on the basis that the Province did not meet its duty to consult and
accommodate, and prohibiting further permitting or approvals until the duty is met.
• Effect: Trans Mountain would likely oppose such an order, potentially requiring the
parties to present arguments to a judge before a decision is made. However, given that
consultation and accommodation is an issue between the Crown and First Nations, if
the provincial Crown and the Squamish Nation agree that the environmental assessment
certificate should be set aside, this would provide a highly compelling basis for the Court
to make such an order.
This option has the potential to judicially set aside Trans Mountain’s existing provincial approval,
and could result in a judicial prohibition on issuance of further provincial permits or approvals.
Even if pursuing this option does not immediately overturn the Trans Mountain approval (because
the court wishes to hear argument from Trans Mountain first), it would swiftly signal the new
government’s intention to take seriously the provincial Crown’s constitutional obligations to First
Nations impacted by the project.
In our view, this would greatly increase the likelihood that the environmental assessment
certificate would be set aside by the Court following argument. This approach would open up
opportunities for BC to engage meaningfully with First Nations, undertake additional review
processes and make a new decision on the environmental assessment certificate with additional conditions, if required.
Approach 3:
Order under section 31 of the BC Environmental Assessment Act to vary provisions of the Act as they apply to the Trans Mountain project.  This approach would involve using an existing variation provision in the Environmental Assessment
Act.
to enable changes to Trans Mountain’s environmental assessment certificate by order.
• Action: Make an order under section 31 of the
Environmental Assessment Act, which allows the Minister to order a variation of one or more provisions of the
Environmental Assessment Act or its regulations “in respect of a specified reviewable project” if “there
is or will be an emergency or other circumstance that warrants or will warrant the variation” and “the variation is in the public interest.”
8
Supreme Court of British Columbia Registry Number S-173649.
• Effect: There are a number of different ways this provision could be employed. For
example, the Minister could order a variation of section 37(2) of the Act, which could
broaden the scope of reasons for which the Minister may (by order) amend, suspend
or cancel the Trans Mountain environmental assessment certificate. This would, for
instance, enable the Minister to make further orders adding conditions to the Trans
Mountain certificate as per points a-c above (or even suspending or canceling the
certificate). As another example, the Minister could order a variation of sections 18
and 37 of the Act to enable the Minister to order that the certificate be amended to
significantly shorten its expiry date. Such orders could be made under the existing
Environmental Assessment Act without the need to introduce legislation.
Approach 4:
After existing permits have been altered, suspended or expired, collaboratively develop the
details of further processes and conditions that must be met before provincial permits can be
granted to Trans Mountain
• Existing assessment and review processes in BC are not up to the task of fully assessing
potential impacts on areas of provincial concern from the Trans Mountain project, nor
can they ensure that the Crown’s duties to First Nations met. Both the NDP and Green
Party have recognized the deficiencies in the current BC environmental assessment
(EA) process and have pledged to fix them. New legislation will ultimately be required
to ensure that things are done right in reviewing not just the Trans Mountain project
but future proposed developments. A new BC environmental assessment of the Trans
Mountain project, if required, should ideally occur under the revitalized EA process,
following the enactment of new EA legislation.
• Impacts on health, safety and drinking water have not been fully assessed in relation
to the Trans Mountain project to date. To do so, one option would be to pass a law
requiring an additional in-depth process reviewing impacts of the Kinder Morgan project
on community health and safety before any relevant provincial permits can be granted.
This approach could enable a detailed and in-depth review of Trans Mountain outside of
the current environmental assessment process.
• In general, we recommend that the time be taken to “get it right” in relation to the way
in which proposed projects like the Trans Mountain pipeline and tanker project, and the
cumulative effects of multiple human activities, are assessed in future in BC. However,
flexible tools such as those discussed above (e.g., under the Environment and Land Use Act) or the Public Inquiries Act could be used to design special review processes in the short term. West Coast has been deeply engaged in all four environmental law review processes currently ongoing at the federal level: environmental assessment law and processes, National Energy
Board, Navigation Protection Act, andFisheries Act. We look forward to contributing to similar BC
processes to strengthen our environmental laws and decision-making processes.
A note regarding BC’s protected areas and the Trans Mountain project.
We note that, to accommodate Kinder Morgan, the provincial government has already removed
land from Finn Creek Provincial Park and weakened protective designations for Finn Creek and
Lac Du Bois Grasslands Protected Areas in order to allow the granting of park use permits for
construction of the Trans Mountain pipeline.
9
There are indications that Trans Mountain may be seeking to have lands removed from the North Thompson River and Bridal Veil Falls Provincial Parks as well.
10
Parks are important and receive a very high level of legal protection under BC law. Indeed, the Park Act does not allow the government to approve industrial development within the boundaries of a Class A or C provincial park.
11
To the extent that Trans Mountain may request that the BC government pass legislation removing further land from provincial parks to accommodate its pipeline, the Province has no legislative obligation to do so.
12
The federal government arguably has the legal power to authorize the taking up of Crown land in a provincial park by Trans Mountain under s. 77 of the National Energy Board Act, but such an action needs to be authorized by the federal Cabinet.
13
Thus, if Trans Mountain seeks to have further land legislatively removed from provincial parks and BC does not change its existing laws to allow it, federal Cabinet would need to address the protected status of the lands explicitly and
would presumably have an obligation to consult impacted Indigenous nations before doing so.
Conclusion
It’s time for BC to hit the ‘pause’ button on Kinder Morgan, uphold its obligations to Indigenous
peoples, and properly assess the project’s impacts – before it’s too late. The legal approaches laid
out here are, in our view, the most reasonable, logical and moral options to ensure that Trans
Mountain does not jeopardize the environment, Indigenous rights and public health.
Prepared by:
Jessica Clogg, Eugene Kung, Gavin Smith & Andrew Gage
West Coast Environmental Law Association
Lands were removed from Finn Creek Provincial Park by amending the Protected Areas of British Columbia Act , through Bill 25 of 2016, the Miscellaneous Statutes Amendment Act 2016. Through Order in Council 216/2017 (March 6, 2017), the lands removed were then made subject to an order under the Environment and Land Use Act that provides that the lands will be managed as park-land, subject to the powers of the Lieutenant Governor in Council to approve the construction and operation of the Trans Mountain. Pipeline through a future park use permit. At the same time, in order in Council 117/2017, the government amended an existing Environment and Land Use Act Order related to Lac Du Bois Grasslands Protected Area to make similar provision for the future issuance of a park use permit to Trans Mountain.
10
Carol Linnitt, “Kinder Morgan asks B.C. to Remove Land from Provincial Parks to Make Way for Trans Mountain Pipeline Con-
struction” (September 11, 2014),  eSmog Canada, online: <https://www.desmog.ca/2014/09/11/kinder-morgan-asks-b-c-remove-
land-provincial-parks-make-way-trans-mountain-pipeline-construction >.
11
Park Use Permits are required for activities within a park:
Park Act , R.S.B.C. 1996, c. 344, ss. 8 -9. In relation to Class A and C
parks, Park Use Permits to disturb natural resources may only be issued where the Minister finds that it is “necessary for the preser
-vation or maintenance of the recreational values of the park involved” (s. 9).
12
Note that the approaches set out above would position the provincial government to refuse, for the time being at least, park
use permits for the pipeline until further processes and conditions are addressed. Ideally, the provincial government would also
permanently restore removed lands to Finn Creek Provincial Park by legislation, and make an order restoring the pre-existing level
of protection to Lac Du Bois Grasslands Protected Area by removing the ability to grant park use permits to Trans Mountain. How-
ever, this may more directly raise constitutional issues similar to those discussed in Burnaby (City) v. Trans Mountain Pipeline ULC,  2015 BCSC 2140 in which Burnaby unsuccessfully sought to restrict pipeline related activities in a local protected area.
13
National Energy Board Act
, R.S.C. 1985, c. N-7, s. 77, requires Cabinet to authorize the taking up of Crown land.

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