Court of appeal tells B.C. to reconsider Trans Mountain environmental conditions

The B.C. Court of Appeal has instructed the province to reconsider its environmental assessment certificate and conditions issued for the Trans Mountain pipeline expansion project.

Squamish Nation and City of Vancouver welcome partial win on court challenge

A picker unloads pipe from a truck and stacks it in a Trans Mountain yard in Edson, Alta. (Terry Reith/CBC)

The B.C. Court of Appeal has instructed the province to reconsider its environmental assessment certificate and conditions issued for the Trans Mountain pipeline expansion project.

In their challenges, the Squamish Nation and the City of Vancouver argued the certificate should be quashed because it was based on a flawed report and approval from the National Energy Board that was later quashed by the Federal Court of Appeal. 

After the National Energy Board reviewed the project for a second time, the federal government again approved the $7.4-billion expansion of the pipeline that runs from Alberta to the B.C. coast.

The B.C. Court of Appeal did not opt to quash the provincial certificate and instead said it's "remitting" it back to the province to reconsider, "in light of the changes in the National Energy Board's report."

The court ruled against the parties on the other argument put forward regarding duty to consult. The court found that the province met its duty to consult with the Squamish Nation on the project.

The question of consultation is still before the courts at the federal level and the legal actions include several B.C. First Nations. 

In its 2017 certificate for the project B.C. placed 37 conditions on Trans Mountain — conditions that are beyond the 156 placed on the Crown corporation by the National Energy Board. It will be up to the province now to decide how it reviews those conditions and if amendments or additions are made.

Squamish spokesperson calls on B.C. to 'respect Indigenous rights'

Reacting to the court's decision on Tuesday, Squamish Nation spokesperson Khelsilem called on the province to put its words about reconciliation into action. 

"Premier Horgan and his government need to set the bar higher and rethink their approach to the TMX Project, and truly respect Indigenous rights by jointly reviewing with the Squamish Nation and other concerned First Nations whose territories would be directly impacted by the pipeline expansion," he wrote in a statement. 

Khelsilem (Dustin Rivers), right, elected councillor and spokesperson for Squamish Nation, embraces Tsleil-Waututh Nation councillor Charlene Aleck in 2018 after a Federal Court of Appeal ruling against the Trans Mountain pipeline expansion. (Darryl Dyck/The Canadian Press)

The City of Vancouver said in an emailed statement that it's pleased to see the court partially allowed its challenge to the certificate. 

"The City remains of the view that the Trans Mountain Pipeline project would have significant environmental impacts, including the unacceptable risk of oil spills and increased greenhouse gas emissions related to the project at a time when the world needs to reduce emissions," a spokesperson wrote. 

Eugene Kung, a lawyer with West Coast Environmental Law who has been involved in several challenges to the pipeline expansion, said it's unclear what changes will result from this decision. He said that if B.C. amends or adds to the conditions in its certificate, it could have an impact on things like construction permitting. 

"B.C. now has an opportunity to put in place some protections for the province that they have been so vocal about... as long as those are within provincial jurisdiction and related to some of the new information provided by the NEB in the reconsideration, I think all of that is fair game," Kung said. 

B.C. says it will 'take every measure available' in response to decision

 B.C. Minister of Environment George Heyman said the decision is still being studied but that the provincial government remains committed to "take every measure available to us to protect B.C.'s interests."

Heyman said any amendments or additions to the conditions in its environmental assessment certificate will happen in consultation with Indigenous groups. 

"That is our constitutional legal duty and one of course we take seriously, given our commitment to the U.N. Declaration on the Rights of Indigenous Peoples," he said.  

In an emailed statement, Trans Mountain said the current certificate remains in place and that it is continuing with construction and planning of the expansion and is committed to building it "in a manner that minimizes impacts to the environment and respects the values and priorities of Canadians."

"The court invited the B.C. government to review the [NEB report] amendments ... to determine whether they impact the provincial conditions that are placed on the project. The court affirmed the province is limited to making adjustments or additions to the provincial marine conditions and must do so within the limited scope of provincial authority over marine issues."