VANCOUVER — A court has overturned Ottawa’s approval of the contentious Trans Mountain pipeline expansion, halting construction on the project and sending the government back to the review phase to examine the impact of tanker traffic and consult more deeply with First Nations.
The decision from the Federal Court of Appeal came on the same day that Kinder Morgan Canada Ltd. shareholders voted 99 per cent in favour of selling the pipeline and expansion project to the Canadian government for $4.5 billion, not including construction costs that could be as high as $9.3 billion.
Finance Minister Bill Morneau pledged to push ahead with his government’s purchase and said the decisions from the court and Kinder Morgan shareholders are important steps in getting the project from Alberta to the B.C. coast built in “the right way for the benefit of all Canadians.”
“Our government remains committed to ensuring the project proceeds in a manner that protects the public interest,” he said in Toronto. “It means upholding our commitments with Indigenous Peoples and it means responsibly protecting Canada’s and Canadians’ investment.”
The fallout from the court’s decision extended to the federal government’s strategy to cut greenhouse gas emissions as Alberta Premier Rachel Notley pulled the province out of Ottawa’s climate plan.
“Let’s be clear, without Alberta, that plan isn’t worth the paper it’s written on,” she told a news conference Thursday evening in Edmonton.
Notley wants Prime Minister Justin Trudeau’s government to immediately appeal the ruling to the Supreme Court of Canada and call an emergency session of Parliament to fix the process so that the pipeline can be built.
In a unanimous decision by a panel of three judges released Thursday, the court said the National Energy Board’s review of the proposal was so flawed that the federal government could not rely on it as a basis for its decision to approve the expansion.
The fatal flaw, the court said, was that it excluded the project’s impact on marine shipping. That, in turn, meant that the energy board did not assess the potential impact of increased tanker traffic on the endangered southern resident killer whale population.
The court also found that during the final phase of Indigenous consultation, the government’s representatives limited their mandate to listening to and recording the concerns of the Indigenous applicants and then transmitting those concerns to the decision-makers.
“There was no meaningful two-way dialogue,” Justice Eleanor Dawson wrote on behalf of the panel.
The ruling requires the energy board to conduct a new review, including the impact of tanker traffic. It also means the government will have to redo part of its consultation with Indigenous groups.
Morneau did not rule out seeking leave to appeal to the Supreme Court of Canada, but suggested the government would comply with the Federal Court’s requirements, saying it had given the government good direction on next steps.
Trudeau said on Twitter that he had spoken with Notley and reassured her that the federal government stands by the project and will ensure it moves forward in the right way.
Victoria MP Murray Rankin said: “It’s a huge day for Victoria, because it was killed because of coastal issues and First Nations issues.”
The unanimous Federal Court of Appeal confirmed the Liberals and Conservatives have failed utterly and are both responsible for a decision termed a nullity and the project cannot proceed due to a failure to look at marine issues and a failure to consult, said Rankin, a New Democrat.
“This is a monumental failure by the Liberals and Conservatives for a process the courts have now said did not work,” he said. “It’s back to the drawing boards with a very uncertain future.”
Canadian Chamber of Commerce president Perrin Beatty said the ruling “sends a profoundly negative message to investors both here at home and around the world about Canada’s regulatory system and our ability to get things done even after the federal government has declared them to be in the national interest.”
NDP Leader Jagmeet Singh, Green Party Leader and Saanich-Gulf Islands MP Elizabeth May, and a host of environmental and Aboriginal groups all called on the federal government to admit defeat and cancel the project.
“Climate leaders don’t buy or expand pipelines,” said Singh, adding that the government should “consider all legal options” to cancel the purchase of Trans Mountain.
But the Trudeau Liberals have staked far too much on the project to “cut their losses and walk away” from it, as May suggested they should do.
The court combined into one case nearly two dozen lawsuits — filed by First Nations, environmental groups and the cities of Vancouver and Burnaby — calling for the energy board’s review to be overturned.
The environmental groups involved in the case cheered the ruling, with Ecojustice, the Living Oceans Society and the Raincoast Conservation Foundation calling it a “critical win” for the climate and coastal ecosystems.
The B.C. government acted as an intervener in the case and also filed a separate reference case to the B.C. Court of Appeal to determine if it has the right to restrict bitumen shipments from Alberta. Premier John Horgan said Thursday the province will continue to pursue the reference case.
— With files from Joan Bryden in Ottawa
— With a file from Cindy Harnett, Times Colonist