It was a shared commitment to stop construction of Kinder Morgan’s Trans Mountain pipeline that, in part, forged the provincial NDP and Green Party into their current alliance. But whether the two have the legal wherewithal to follow through is very much up for debate.
“That seems to be the question on everyone’s mind right now,” said Eugene Kung, staff counsel with West Coast Environmental Law. “From what I’ve seen and certainly what we will be communicating to the incoming Green and NDP government is that they do have a number of tools in their toolbox that can stop and/or delay the project significantly.”
Both Prime Minister Justin Trudeau and Alberta’s NDP Premier Rachel Notley told reporters this week that the pipeline approval is firmly federal jurisdiction and that it is a done deal.
“(That) seems to gloss over the nuance of it and in my view, it’s largely motivated by political posturing rather than legal analysis,” Kung said.
Although the National Energy Board and the federal cabinet have authority over whether to approve the project, the province under Christy Clark did issue its own environmental certificate in January.
That certificate is being challenged in court by First Nations, including the Squamish Nation on the North Shore, charging that the Crown failed in its duty to provide meaningful consultation as guaranteed by the Constitution.
Weaver and Horgan could instruct government lawyers to drop the province’s defence, likely resulting in the environmental certificate being thrown out, Kung said.
“That’s where it gets into interesting and in some ways unknown territory,” he said, noting that it is not clear whether the federal approval alone will suffice. “At best, that hasn’t been tested in the courts.”
Beyond that, there are a number of lesser permissions the province must grant along the way for construction of the pipeline that could be denied.
“The question is, if those weren’t forthcoming from the provincial government, what would the federal government or the company do to try to enforce the federal decision?” Kung said.
Stalling the project may also prod the feds to re-evaluate the political opposition in B.C and change course, Kung added.
Local newly elected NDP MLA Bowinn Ma can attest to Kinder Morgan as a make-or-break political issue.
“I do think that Kinder Morgan was extremely important to a large section of people who ended up coming out to vote NPD in North Van-Lonsdale,” Ma said.
Ian Anderson, president of Kinder Morgan Canada, issued a statement on Wednesday in response to the political upheaval targeting his project.
“Trans Mountain has followed every process and met every test put before us. Over many years our project has been reviewed, analyzed, discussed and considered thoroughly taking into account all the scientific and technical studies, input from communities and a variety of opinions,” it read.
“With financing in place and a final investment decision, we are starting to award significant contracts and are moving ahead with benefits agreements we have in place with Aboriginal and local communities.”
