From left to right: Derek Corrigan, Rachel Notley, Amarjeet Sohi

Only real legal threat to Trans Mountain Expansion is Federal Court of Appeals review spearheaded by coastal First Nations

The City of Burnaby has lost another legal challenge against the Trans Mountain Expansion pipeline project Thursday, this one at the Supreme Court of Canada, dismissing a lower court’s judgement refusing to hear arguments against a December NEB ruling granting relief from City tree cutting permits. Project supporters were elated and Burnaby Mayor Derek Corrigan vowed to continue tilting at windmills.

“The application for leave to appeal is dismissed with costs to the respondents, the Trans Mountain Pipeline ULC and the attorney general of Alberta,” the top court said in its one paragraph decision.

Alberta Premier Rachel Notley, a staunch supporter of the project, tweeted that the courts have ruled 17 out of 17 times in favour of Trans Mountain.

“Our government is batting a thousand when it comes to fighting for this pipeline,” Notley said. “When the City of Burnaby tried to block the Trans Mountain Pipeline in court, we intervened — and we won in court and we won again today.

“This project is in the national interest, it has more certainty than ever and we’re pleased it’s moving ahead.”

Corrigan just won’t take “no” for an answer.

“We’re disappointed that the courts seem unwilling to review decisions made by the National Energy Board that hamper municipal jurisdiction,” he said in a statement posted to the City’s website. “We think the question of whether federal projects such as this should expect immunity from municipal regulation is an important one – and even more important now that the Federal Government has bought this flawed project.

“Burnaby is not going away. We intend to continue to oppose this project with all legal means available to us, and will be continuing with our other legal challenges.”

Last year, Kinder Morgan applied for relief from the tree cutting permits, claiming the City was deliberately dragging its feet and delaying the process. The NEB gathered correspondence from both sides and ruled conclusively for the company.

The issues at the core of the dispute are interjurisdictional immunity and paramountcy.

The former means that in areas where the Canadian government has jurisdiction, provincial and municipal governments can’t “frustrate the purpose” of a federal undertaking, such as the National Energy Board’s approval of Trans Mountain Expansion.

The latter means that when federal and provincial legislation conflict, the federal government trumps the provincial.

What’s a bit galling about Corrigan’s stand is that while the NEB ruled they found no evidence of political interference, but it was patently clear the bureaucrats had no intention of acting “in a timely and reasonable manner.”

And all the complaining by opposition politicians about delays in construction can be laid at the feet of Burnaby, according to the NEB ruling:

Even viewed with restraint, the unreasonable amount of time it has taken Burnaby to process the PPA applications and Tree Cutting Permits is having a sufficiently serious effect on when the Terminal Work which is part of the Project, can be carried out…the Burnaby permitting process is the cause of, or a contributing or exacerbating factor to, construction delays.

One look at the remaining court challenges in which Burnaby is participating provides a glimpes into why the US pipeline giant was willing to sell the project and other Canadian assets to the Trudeau Government for $4.5 billion:

  1. Federal Court of Appeal – the City of Burnaby is still awaiting decision on the challenge to the original NEB decision argued in November.
  2. Federal Court of Appeal – the Judicial Review of the Detailed Route Hearing decision made by a different NEB panel in April 2018 (no hearing date set yet, but written argument is due next week).
  3. BC Court of Appeal – Burnaby is a participant in the BC Reference case which will be heard in 2019; evidence being filed in September.
  4. NEB proceeding – Westridge Line Relocation being heard by the NEB (arguments due in September).

Is it any wonder the feds believed the only way to restore faith in Canada’s regulatory system was to buy the pipelines, the resolve the legal challenges and clarify once and for all federal jurisdiction over inter-provincial pipelines.

Canada’s Natural Resource Minister Amarjeet Sohi says today‘s decision is another step in the process and repeated Ottawa’s resolve to get the project built. 

“Our government stands by its decision to purchase this federally-regulated project to secure access to new markets and the thousands of good, middle class jobs it will create. The decisions to approve and purchase the Trans Mountain Expansion Project was based on the national interest, and is an investment in jobs and the future of Canada,” he said in a statement.

“We have taken an approach to resource development that will grow our economy and protect the environment.  These priorities go hand-in-hand.”

The boogeyman lurking in the background of this constitutional dispute is the fact that Trans Mountain Expansion has become a proxy for the integrity of the Canadian regulatory system.

If Ottawa loses, investors lose even more confidence than they have already, which all accounts is a considerable amount.

Given the federal government claims there is $500 billion of investment in Canadian natural resource projects over the next decade, all or most which will rely upon Ottawa’s approval meaning those projects can go ahead without being harassed and harried as Kinder Morgan was.

Considering the incentives for Prime Minister Justin Trudeau and Finance Minister Bill Morneau to complete Trans Mountain Expansion and to exit the pipeline business, there is not even the most slender of chances the pipeline won’t be built.