Court throws out Trans Mountain pipeline challenge from City of Vancouver and Squamish Nation

B.C.'s Supreme Court has dismissed legal challenges to Kinder Morgan's Trans Mountain expansion project from the City of Vancouver and the Squamish Nation.

Legal challenge alleged inadequate consultation process around the Kinder Morgan project

Demonstrators hold a banner at the Kinder Morgan facility in Burnaby. A B.C. Supreme Court judge has thrown out a challenge by the City of Vancouver and Squamish Nation of the Trans Mountain Pipeline consultation process. (Rafferty Baker/CBC)

B.C.'s Supreme Court has dismissed legal challenges to Kinder Morgan's Trans Mountain expansion project from the City of Vancouver and the Squamish Nation.

In a pair of rulings issued Thursday morning, Justice Christopher Grauer found the province of British Columbia acted reasonably in issuing an environmental assessment certificate to the company.

As Grauer pointed out in his opening remarks to both cases, the decisions are not the end of the legal hurdles facing the pipeline. They dealt strictly with the question of whether the province could defend its actions in light of the National Energy Board's approval of the project.

"This case is not about whether the TMX [Trans Mountain expansion project] should or should not go ahead. It is not about whether the TMX is in the national interest, or presents an unacceptable risk of environmental harm," Grauer wrote.

"This case is not about the adequacy of the consultation that was undertaken through the National Energy Board [NEB] and federal cabinet processes, nor does it resolve or define beyond currently settled law the constitutional limits on what either British Columbia or Alberta can or cannot do in relation to the project."

Protesters are watched by RCMP outside the Kinder Morgan facility in Burnaby. (Darryl Dyck/Canadian Press)

The Trans Mountain expansion would triple the amount of oil being transferred from Alberta to the Kinder Morgan terminal in Burnaby, B.C. The number of oil tankers in the water would also increase to 35 from five each month. 

The City of Vancouver claimed that in reviewing the Trans Mountain project, the province failed to engage in proper consultation and failed to conduct a proper environmental assessment.

The City of Vancouver claimed the province failed to engage in proper consultation or environmental assessment. The Squamish Nation argued that the province should have done a further assessment to make up for a flawed NEB process. (Erin Collins/CBC)

For its part, the Squamish Nation argued the province should have done a further assessment to make up for what it maintained was a "fundamental failure of the process of consultation and accommodation" by the NEB.

Limitations of the ruling

In regard to the Vancouver case, Grauer went to great pains to clarify what questions his court could and could not answer. He said the current provincial government's challenge to the federal government's authority was not part of the litigation before him, nor was the decision of the federal cabinet to approve the project.

"Did [the province] follow the law? Did it act with procedural fairness? Did it act reasonably and in compliance with its own statutory processes?" Grauer asked.

"These are the questions that the courts are equipped to answer, subject always to the considerable constraints imposed by the standards of review that the courts are obliged to employ."

As far as the concerns of the Squamish Nation are concerned, Grauer noted that the Federal Appeal Court is currently considering the adequacy of the NEB's Aboriginal consultation.

But the judge concluded that "adequate consultation did not require British Columbia to correct any perceived shortfall in the NEB process."

He said the province "considered the options constitutionally open to it, and proceeded accordingly."

"There is no doubt that Squamish is deeply disappointed in the approval of the TMX notwithstanding the conditions attached to that approval. It strenuously opposed the project and continues to do so," Grauer wrote.

"But ... I must concern myself not with the result but with the process."

On Thursday, the City of Burnaby also filed another action with the Federal Court of Appeal, asking for a judicial review of the energy's board's approval of the pipeline route. It argued the construction would do serious damage to many areas of the city.

Squamish Nation reacts

A posting on Facebook says the Squamish First Nation had just received the decision and was disappointed. But spokesperson Khelsilem pointed out that the decision was only about provincial approval and that the First Nation is also part of the challenge in the Federal Court of Appeal.

"We have a right to practice our culture, our way of life, and to continue our right to self-determination in our territories," Khelsilem wrote. "This is a right that we have never surrendered, and it is a right we will continue to defend."

The City of Vancouver also released a statement saying it was "disappointed" with the decision.

B.C. Attorney General David Eby said both cases involved decisions made by the previous Liberal government, but the NDP government still argued that the provincial Crown had fulfilled its legal duty to consult the Squamish Nation.

"Our government has taken a balanced approach to defending our environment and our economy while fulfilling our legal obligations and respecting the rule of law," Eby said.

The province took no position on the merits of the Vancouver claim.

Kinder Morgan said it was pleased with the court's decision.

Meanwhile, Alberta Premier Rachel Notley said she was happy to see at least one legal hurdle fall.

"This pipeline is unlike any other in that it has been rigorously reviewed, meaningful consultation has taken place and it is paired with an effective climate protection plan," she said in a statement.

"The failures of the past will not be repeated. The government of Alberta will not stop fighting until we get the job done. We will get this pipeline built."

Both parties have 30 days to appeal. Vancouver said it is considering its options.

Grauer has also ordered the City of Vancouver to pay Trans Mountain's legal costs for fighting the city's petition.