Derek Corrigan, mayor of Burnaby, BC, terminus of the Trans Mountain Expansion pipeline project

Only legal threat remaining to Trans Mountain Expansion is judicial review of Canadian government’s project approval

After the Federal Court of Appeal dismissed a request for leave to appeal a National Energy Board ruling Friday the City of Burnaby Mayor Derek Corrigan says he will go all the way to the Supreme Court of Canada to stop the Trans Mountain Expansion pipeline. Unfortunately for him, constitutional lawyer Margot Young says the top court in the land rarely agrees to hear cases snubbed by the lower court. This is likely the beginning of the end for junior government opposition to the Kinder Morgan project.

“The federal court has refused to review the decisions made by the National Energy Board,” said Corrigan.

“They’re not giving consideration to the arguments being made by the City and the provincial government that oppose the NEB ruling.”

Margot Young, UBC law professor.

The NEB ruling in question was made in Dec. and the Canadian energy regulator released the rationale for its ruling on Jan. 18.

The ruling made two broad points.

One, the federal government’s primary authority over inter-provincial pipelines was confirmed.

More specifically, the NEB ruled (the NEB Act establishes the regulator as a superior court) that the constitutional principle of “paramountcy” applies. This means that when provincial laws or municipal bylaws conflict with federal jurisdiction, the federal government takes precedence.

Two, Burnaby was not trying hard enough to process tree cutting permits in a timely fashion. Not even close.

The Board sifted through copious emails and correspondence between the City and the company, concluding that “…Burnaby’s process to review the PPA [re-zoning] applications and associated Tree Cutting Permits, and its execution of those processes, were not reasonable, resulting in unreasonable delay.”

And unreasonable delay  is costing Kinder Morgan $30 million to $35 million per month, which the Board acknowledged is a concern.

Rachel Notley, Alberta premier.

The NEB “relieved” the company from the requirement of the municipal permits. It also established a process for resolving future permitting disputes.

The ruling was a huge win for Kinder Morgan and its government allies, Rachel Notley in Alberta and the federal government of Justin Trudeau.

The Federal Court of Appeal’s refusal to hear the appeal of the NEB ruling was an even bigger win.

One is generally unlikely to succeed at appealing a denial of leave to appeal,” Young said in an emailed statement. 

She opposes the pipeline and argues that the NEB and court of appeal are relying on “classical federalism,” which views the constitutional division of powers between Canadian governments as separate and distinct, rather than the “co-operative federalism” approach that requires governments to get along and work together when they share authority, as is arguably the case with Trans Mountain Expansion.

“Federalism questions are about the balance to be struck; an analysis that folds one side into the other perspective does disservice to clarity of federalism arguments.  This is not to say that the Board’s decision is ultimately wrong, but that its reasoning might well benefit from a judicial review,” she wrote. 

This will more or less be Burnaby’s view when it applies for leave to appear before the Supreme Court, according to Corrigan, who began his professional career as a lawyer.

Justin Trudeau, prime minister of Canada.

“The Court System should be the body that decides whether or not this is fair and just, but they dismissed our application without reasons. Very clearly, it’s something the court should have dealt with and given reasons why it’s not allowing the provincial government to exert its authority to protect the environmental interests of the province,” he said.

“We will, therefore, now ask the Supreme Court of Canada to perform this function.”

But, as Young has pointed out, the Supreme Court is unlikely to grant Burnaby’s request.

Where does that leave the legal challenges to Trans Mountain Expansion?

The BC government has hired a hotshot lawyer to prepare a reference case to the Federal Court of Appeal to determine if the Province has the authority to restrict shipment of diluted bitumen through British Columbia while the Horgan government studies the science behind cleaning up heavy crude oil spills.

It’s hard to see how that reference case would be successful in light of Friday’s appellate court decision, which essentially leaves the NEB’s Dec. ruling intact.

The only other legal challenge is a judicial review of Ottawa’s project approval from 17 applications, led by a group of BC First Nations and opposed by Alberta and Canada.

The Federal Court of Appeal has been considering this matter for over a year and no one knows when a decision will be rendered.

Background discussions I’ve had with constitutional lawyers suggest that the Trudeau Liberals deliberately plugged holes in consultations with indigenous communities to avoid the fate of Northern Gateway, which was overturned because the court ruled the Stephen Harper Conservatives failed to consult properly with First Nations.

A best guess might be that the court makes some concessions to the applicants while not quashing the project. But that’s just a guess.

In the meantime, all that BC pipeline opponents have left is political pressure, a point Young makes: “The Board’s decision that Kinder Morgan, unlike all other permit seekers in Burnaby, can ignore key municipal bylaw regulations sends a message that can only intensify local opposition.  There is much at stake politically in resolution of a rather arcane doctrinal question of constitutional law.”

There is much at stake politically, and the summer will see just how much political heat is brought to bear on Trudeau. But from the legal point of view, Alberta (Kinder Morgan and the federal government, too, of course) looks to be the big winner thus far.