Alberta leaving federal climate plan after Trans Mountain decision

Devin Lawrence
September 2, 2018

The Canadian province of Alberta announced Thursday it would pull out of Prime Minister Justin Trudeau's flagship climate change initiative in protest against a court ruling against the expansion of the Trans Mountain pipeline.

The company temporarily halted construction earlier this year, saying it was concerned that feuding between the governments of Alberta and British Columbia, which sided with environmental groups fiercely opposed to the project, created undue political risks.

Ironically, KML shareholders voted overwhelmingly (99%) Thursday, shortly after the Federal Court of Appeal ruling, to sell the pipeline to the Canadian government. "They've committed billions of dollars in taxpayers' funds doubling down on a project that the courts have just quashed". The expansion initially was forecast to cost C$7.4 billion ($5.9 billion) to triple capacity to 890,000 b/d.

In a written decision, the court indicated that the National Energy Board's review of the expansion project was "so flawed" that the Trudeau Government couldn't rely on it as the basis for its approval of the project back in 2016.

The Ontario Superior Court overturned a gold mining permit in July after deciding the Ontario government failed to consult with the Eabametoong First Nation. Canada (Attorney General), No. A-78-17.

The court combined into one case almost 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 board unjustifiably defined the scope of the project under review not to include project-related tanker traffic". A federal appeals court, however, has now put a stop to that.

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.

"The big takeaway is the duty to consult (indigenous people) is still the most important step in any major project", said Andrew Leach, associate professor of business economics at University of Alberta.

The order has been remitted for appropriate action, "if it sees fit to address these faults and later, proper redetermination", said the panel.

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The court concluded that the National Energy Board made a "critical error" in not considering marine shipping impacts, leading to "unacceptable deficiencies" in its recommendations to the government to greenlight the project.

Canada's Finance Minister Bill Morneau said the pipeline was in the national interest.

"It's very disappointing. Most of us thought with the federal government's latest move to agree to purchase the project that perhaps that would remove all of the significant barriers to this project getting off the ground or getting completed", he says.

Protecting the environment and growing the economy must "go hand in hand", he stressed, adding that this "is the type of compromise that we need".

"Meaningful consultation is not intended simply to allow indigenous peoples "to blow off steam", the decision said. Being an equity owner of this project means we will have the voice to do so", he said.

"Trans Mountain is now taking measures to suspend construction related activities on the project in a safe and orderly manner".

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.

"We would like to see a NAFTA agreement sooner rather than later", he said. "The courts have upheld Canada's laws in the face of a government unwilling to do the right thing".

Other First Nations, however, expressed hope that the project would proceed, including the Whispering Pines First Nation near Kamloops, B.C., part of a contingent that supports the pipeline going ahead under Indigenous control and is trying to buy it. "Respecting indigenous rights requires ensuring free, prior and informed consent, not continuing Canada's colonial legacy of privileging extractive industry".

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