Trans Mountain Caught in Never-ending Trance

Commentary, Energy, Lee Harding

“The current state of affairs in Canada is such that building a pipeline to tidewater is practically impossible,” says Alberta Premier Rachel Notley. Truer words were rarely spoken. These ones were spoken at an August 30 press conference as the courts set back the TransMountain pipeline expansion. The hurdles, it seems, never-end.

The Federal Court of Appeal decided that the National Energy Board had an “unjustifiable failure” when it did not consider the effect of increased tanker traffic on water and marine life. It also ruled that there was inadequate consultation with First Nations as well. The court even added the federal government should have known better than to listen to the NEB, but insisted that a rectification process could be “brief and efficient,” resulting in only a “brief delay in the project.”


Moments later, the shareholders for Kinder Morgan held their pre-scheduled meeting to approve the $4.5 billion sale of the TransMountain Pipeline to the federal government. This was called “a surreal coincidence” by the Edmonton Journal, though skeptics might have a more dubious assessment.

43 First Nations groups have approved the project, 12 in alberta, 31 in BC

The road ahead just got stretched, which had already been long. Kinder Morgan’s submitted its proposed Trans Mountain pipeline expansion to the NEB in 2013. It largely stuck to the same path as its initial pipeline, which had been in use in 1953. Only 11 percent of the route required new right-of-way approvals. The federal government approved the pipeline proposal in 2016, but the change of British Columbia’s provincial government brought fresh and determined opposition to the project. As a result, Kinder Morgan announced in April it would suspend the project until it received assurances. The federal government offered to buy the pipeline, something that happened just after the court verdict.

Against all odds, the project seemed to be making progress. On August 23th, the Supreme Court rejected an appeal by the City of Burnaby trying to stop the pipeline. It was the 17th straight legal victory for the project. The National Energy Board is used to being in court. It’s a lose-lose situation for taxpayers, who often fund both sides of the argument and the courts that adjudicate. The NEB defends itself on one side, sometimes with the help of provincial governments, while the opponents are most often municipal or provincial governments or First Nation bands.

In all, 43 First Nation bands had endorsed the project. They had secured the support of all the bands through whom the pipeline went and, by Kinder Morgan’s estimate, 80 percent of those nearby. The bands were looking forward to $400 million they had agreed to receive from Kinder Morgan, not to mention the employment provided as the pipeline made its way west. The only money coastal bands could hope for from this pipeline proposal is from pipeline opponents, such as the foundations in the United States which have funded and co-ordinated anti-oil sands efforts for at least ten years now.

The courts have recognized a “duty to consult” Aboriginal bands, but its interpretation has been largely left to judicial whims. Courts have consistently shown that the duty to consult Aboriginal bands does not constitute a veto. How reasonable or productive would it be to talk to coastal bands who would never agree to a pipeline or more west coast oil tankers? The project was already addressing 157 conditions placed on it by the NEB. It even agreed to share part of the profits with a new BC Clean Communities Program to fund local projects for the betterment of BC’s natural and coastal environments.

Law professor Dwight Newman, who authored a book and academic paper on the duty to consult, believes that governments need to be more proactive in eliminating the legal uncertainty around pipelines. To this end, he is fully supportive of Bill S-245 the Trans Mountain Pipeline Project Act, which was introduced by Alberta senator Douglas Black in February. It would declare the Trans Mountain project to be “for the general advantage of Canada.” This would invoke 92(10)(c) of the Constitution Act to clarify federal jurisdiction over the project. Such powers have been invoked hundreds of times before, and, in Newman’s opinion, would have made the nationalization of the project unnecessary.

For its part, the federal government insists it still supports the project. Yet, whether Ottawa appeals to the Supreme Court or abides by the decision, pipeline construction has been set back at least six months. This leaves Canadian oil and gas exports largely cut off from Asia, and fetching sub-world prices in the U.S. But Canada can’t put its best foot forward so long as it is busy shooting it.