The Trans Mountain Pipeline Court Decision

Ms Soapbox spent the long weekend poring over the Federal Court of Appeal’s decision nullifying the Order-in-Council that approved the Trans Mountain pipeline expansion (TMX).  Mr Bumble’s comment in Oliver Twist comes to mind.  Mr Bumble said if the court thought he could control his domineering wife, the law was an ass.

By now the entire country knows the FCA put a hold on the construction of TMX.

Everyone has an opinion, it’s a good thing, it’s a bad thing, did the Liberals learn nothing from Northern Gateway, is it another example of western alienation, etc.

cour_appel_fed_pm_660x300_0

Have any of these people read the decision or are they content to misrepresent it in the hopes of drumming up votes?

Let’s look at the decision; but first some context.

Timeline 

In Dec 2013 Trans Mountain filed an application to build and operate the Trans Mountain Expansion Project with the NEB.

In May 2016 after reviewing tens of thousands of pages of evidence and hearing from 1600 participants, the NEB recommended to the GIC that the Project be approved subject to 157 conditions.

The Crown consultation process started in 2013 and ended in Nov 2016.  It was augmented by the work of a Ministerial Panel which identified “any additional views that could be relevant to the Government’s final decision” but was not part of the Crown consultation process.

In Nov 2016 the GIC accepted the NEB’s report and issued an Order in Council approving the Project subject to the NEB’s 157 conditions.

A flurry of appeals and applications for judicial review were launched and decisions were rendered.

Then on Aug 30, 2018 the FCA put TMX on hold.  It said the NEB report to the GIC was so flawed the GIC could not rely on it in making its decision and the Order in Council was nullified.

The FCA decision

The FCA’s identified two fatal flaws: (1) the NEB “unjustifiably” defined the scope of the Project to exclude Project-related tanker traffic and so avoided the need to mitigate the adverse effects of increased marine traffic on the Southern resident killer whale, and (2) Canada did not adequately discharge the duty to consult with Indigenous people.

Flaw #1:  Project Scope

The NEB said that unlike Transport Canada, Port Metro Vancouver, Pacific Pilotage Authority and the Canadian Coast Guard, it had no jurisdiction over Project-related shipping, namely tankers going in and out of Westridge Marine Terminal.

Consequently, it excluded Project-related shipping from the Project scope.  This meant it would assess the environmental and socio-economic effects of increased marine shipping under the NEB Act and conduct an Environmental Assessment under CEAA but would not address the impact of  increased marine shipping on the Southern resident killer whale under the Species at Risk Act.*   

The FCA said the Project scope should have included Project-related shipping, the Project was a “designated project” under Canadian Environmental Assessment Act (CEAA) and triggered the Species at Risk Act which required the NEB to address the adverse effects increased marine traffic would have on the Southern resident killer whale.

Commentators who say it’s bloody obvious the NEB screwed up clearly haven’t read a prior FCA decision in which the FCA dismissed an appeal of the NEB’s failure to include marine shipping in the TMX Project scope because the appellant should have raised its concern at the beginning of the NEB hearing when the NEB could have considered it fully.    

They’ve also not read this FCA decision where the FCA fails to explain why it ignored its previous decision and makes a pathetic attempt to justify the inclusion of Project-related shipping in the Project scope with a bootstrap analysis that starts with a CEAA guidance document CEAA says “is for information only” (it’s not a statutory instrument) and adds Trans Mountain’s evidence of steps it’s taken to enhance tanker safety plus NEB conditions on marine safety to reach the conclusion that tanker traffic is “incidental to” the Project and should be included in the Project scope.

The NEB is an expert tribunal.  It has the jurisdiction to consider matters of fact and law.  It determined it did not have jurisdiction over Project-related marine vessels.  The FCA tied itself into knots to demonstrate otherwise.

Flaw #2:  Duty to consult

The NEB identified 130 Indigenous peoples who might be affected by the Project.  Seventy-three were granted intervenor status and six brought applications arguing Canada had failed in its duty to consult.

The FCA reviewed the principles applicable to the duty to consult:

  • It arises from “the honour of the Crown” (a promise is a promise) and the protection of aboriginal and treaty rights in section 35(1) of the Constitution Act, 1982
  • It is fact specific
  • The depth of consultation increases as the strength of the prima facie Indigenous claim and seriousness of potentially adverse effects increases
  • Strong Indigenous claims may trigger a duty to accommodate, weaker ones may not.
  • The Crown’s duty to consult can be fulfilled in whole or part by the NEB process, but it’s up to the Crown to ensure the NEB consultation is adequate.
  • The duty to consult is not a duty to agree and does not give Indigenous people a veto.

The Crown’s consultation process started in 2013.  It had four phases and was complemented by a four-month consultation process run by the Ministerial Panel.

Critics argue Canada learned nothing from the FCA’s criticism of the Northern Gateway consultation process.  This is not true.

The Crown’s consultation process in Trans Mountain, unlike the process in Northern Gateway, did not withhold information from Indigenous applicants, it did not present inaccurate information to the GIC, it granted time extensions, it responded to information requests, it disclosed its assessment of the strength of Indigenous parties’ claims to right or title and its assessment of Project impacts and it made Ministers available.

The FCA ruled the consultation process was reasonable and satisfactorily implemented with the exception of Phase III which kicked in after the NEB closed the record and ended before the GIC rendered its decision.  Phase III was intended to address concerns not addressed in the hearing or by the NEB conditions and Tran Mountain’s commitments.

At this point everything fell apart according to the FCA.

The FCA acknowledged the consultation team was respectful and did a good job of understanding and accurately documenting the Indigenous applicants’ concerns and presenting an accurate and unbiased report to the GIC.

Nevertheless, the FCA found the consultation team failed to engage in “meaningful dialogue and grapple with concerns” so as to explore possible accomodation.

The FCA attributed this failure to the consultation team’s unwillingness to depart from the NEB’s findings and “genuinely understand” the concerns raised, as well as the GIC’s erroneous view that it could not add more conditions.

What should the consultation team have done?

Critics suggest the team should be more than stenographers.

Okay, but it didn’t have decision-making authority.  It couldn’t substitute its views for that of the NEB.  What should it have done to “meaningfully grapple” with concerns such as:

  • rerouting the pipeline to avoid an aquifer
  • implementing specific recommendations already covered in generic NEB conditions
  • reconsidering the behavior of diluted bitumen in the marine environment
  • putting a spill response centre on the reserve and funding it with a per-barrel spillage fee based on product flowing through the pipe
  • implementing a resource development tax on proponents with projects located on traditional territory

Did the team have better expertise than the NEB to make different recommendations to the GIC?  Or was it enough that the team presented an accurate and unbiased account of Indigenous concerns to the GIC?

One of the three judges in the Northern Gateway case said its consultation process was just fine.  The TMX consultation process was far better than the Northern Gateway consultation process and all three judges said it wasn’t good enough.

The courts are right when they say it’s impossible to take a “check the box” approach to consultation, but it would help if they stopped moving the goal posts in the name of “meaningful dialogue”.

What should the GIC have done?

The GIC is the final decision-maker when it comes to approving interprovincial pipelines.  It reviews the NEB report and can: (1) direct the NEB to dismiss the application, (2) accept the NEB’s report and conditions and direct it to issue the certificate, or (3) ask the NEB to reconsider its recommendations and conditions and resubmit the report.

The GIC picked door number two.  It accepted the NEB’s report and conditions and directed the issuance of the certificate.

But wait, the FCA says there’s a fourth option:  The GIC could have imposed additional conditions of its own on TMX and the fact it didn’t do so is another reason why the Crown failed to fulfill the duty to consult.

The GIC has never imposed its own conditions on a project.  When did it get this new power?  When the FCA gave it to them in the Northern Gateway (Gitxaala Nation) case.

The Supreme Court of Canada will one day let us know whether the FCA is correct.  But given the pipeline expertise at the GIC compared to pipeline expertise at the NEB it’s not clear Canadians would want the GIC to have this power.  (One shudders to think what conditions a Cabinet full of climate change deniers would slap on to an NEB project.)

Where do we go from here?

Well Ms Soapbox wants to go on vacation until this whole thing blows over…

But Canada will not be able to get a pipeline to tidewater if the FCA decision stands so it must be appealed on the grounds that the FCA was wrong to include marine shipping in the Project scope, and it was wrong to conclude the Crown failed to satisfy the duty to consult.

The feds could amend the CEAA to make it clear that a “designated project” does not include marine vessels moving in and out of marine terminals and just to be on the safe side, they could restart the consultation process.

Because as Mr Bumble pointed out, sometimes the law is an ass.

*Updated to clarify the fact the NEB conducted an Environmental Assessment under CEAA but since it decided the Project did not include Project-related shipping, decided it could not not address the impact of shipping on the Southern resident killer whales under SARA.

Sources: https://www.canlii.org/en/ca/fca/doc/2016/2016fca187/2016fca187.html

https://www.canlii.org/en/ca/fca/doc/2016/2016fca219/2016fca219.html

https://www.canlii.org/en/ca/fca/doc/2018/2018fca153/2018fca153.html

https://www.canada.ca/en/environmental-assessment-agency/services/policy-guidance/guide-preparing-description-designated-project-under-canadian-environmental-assessment-act-2012.html

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42 Responses to The Trans Mountain Pipeline Court Decision

  1. RJ says:

    ‘nother good one . . .

  2. ed henderson says:

    I doubt that the pipeline will be built.

  3. aratureis says:

    Thank you so much for the time and work you put into researching and explaining this.

    Yvonne

    On Tue, Sep 4, 2018, 8:58 PM Susan on the Soapbox, wrote:

    > susanonthesoapbox posted: “Ms Soapbox spent the long weekend poring over > the Federal Court of Appeal’s decision nullifying the Order-in-Council that > approved the Trans Mountain pipeline expansion (TMX). Mr Bumble’s comment > in Oliver Twist comes to mind. Mr Bumble said if the cour” >

    • Thanks Aratureis. It took me days to plow through the FCA decision, related Court decisions, relevant statutes, and departmental guidance, actually I enjoyed it, but it made me wonder how the “usual suspects” in mainstream and social media were able to state definitively that it’s all the Liberals’ fault. Reasonable disagreement is one thing, stoking anger based on misrepresentation is quite another.

  4. Paul Nelson says:

    The expertise to determine a fate of a complex project resides within the regulator. Project related shipping should have been included. Meaningful consultation should have been included. The appeals court was correct to revoke the license and attribute the fault to the regulator.

    • Paul we agree that the expertise to determine the fate of these projects resides with the regulator. It’s unfortunate Harper amended the NEB Act in 2012 to shift the final decision to the GIC.
      I would have been OK with project related shipping being included if the FCA made that determination based on statutory interpretation and not on two clauses in a policy/guidance document that could be changed with the stroke of a pen by a mid level employee working at CEAA. That is not how laws are made and not how laws should be interpreted.
      We agree that meaningful consultation is critical, but I’m at a loss to see how the FCA decision helped make this duty any clearer. The decision of the dissenting judge in the Northern Gateway case was more helpful. He said Aboriginal rights impacted by “the use and benefits of the lands and waterways that the Project will cross” should be the focus of consultation and that meaningful dialogue should not include an attack on the NEB’s report “in a forum neither designed nor equipped to adjudicate its merits.” He may have limited the duty to consult too much but at least he set out some parameters.

  5. Jeff Surtees says:

    Under FCA #1you are missing a “not”.

    • Jeff Surtees says:

      I mean under “Flaw #1”, after “Consequently”

      • Jim, actually the sentence is correct. The NEB *did* assess the environmental and socio-economic effects of increased marine shipping under the NEB Act, but it *did not* also assess the effects of marine shipping under CEAA and the Species at Risk Act. I’ve added this last bit to the sentence so the distinction is clear. Thanks.

        *Sorry, that sentence is not entirely correct. The NEB conducted an Environmental Assessment under CEAA but since it decided the Project did not include Project-related shipping, it decided it could not address the impact of shipping on the Southern resident killer whales under SARA.

  6. Linda says:

    Good work here

  7. David says:

    Well, with all the court cases against it I figured something had to stick eventually. I didn’t think the pipeline could keep dodging legal bullets forever.

    The bar for getting pipelines built, which years ago such as when the original Trans Mountain pipeline was built, was quite low is now quite high. Its a debatable point, but some would argue we have over corrected. In any event, I suppose the good news if there is any here, is the court seemed to indicate the problems with the approval process were serious, but potentially fixable. So I guess that is what the Federal Government needs to do now – try fix things somehow.

    In the meantime, the pipeline soap opera continues although I suspect most people will lose interest fairly soon. Nothing like a bunch of bureaucrats trying to deal with a lot of arcane legal details, exciting- yeah that will make the six o’clock news, only if they want most of their viewers to quickly switch to watching something else.

    At some point, something will eventually happen, an announcement or resumption of construction, but don’t expect that soon. Until then we will mostly move on to discussing things that are maybe not more important, but more interesting. The great pipeline political debate is ending (for now) more with a whimper than a bang.

    • David, you’re right that the pipeline soap opera will soon sink to the bottom of the 24 hour news cycle, replaced by something more exciting like Bob Woodward’s new book on the dysfunctional White House and the wacko US president. I’m just sorry that it’s been such a devastating blow to Notley’s chances of re-election. Trudeau may come through OK because he has 5 more months than she does before the next election date.

  8. Munroe Scott says:

    Susan, I appreciate your extensive run down on this whole fiasco but respectfully suggest that the CEAA should be amended (clarified) to make it clear that a “designated project” DOES include marine vessels moving in and out of marine terminals. I fail to see how that can rationally be left out of the equation.

    • Munroe, yes, your suggestion would overcome my problem with how the FCA decided the project was a “designated project” under CEAA.
      I may not have made it clear that the NEB followed a process similar to the CEAA process. It considered the impact of Project-related tanker traffic as part of its public interest (environmental and socio-economic) determination. It concluded tanker traffic would have a significantly adverse effect on killer whales, included that finding in its report to the GIC. The GIC approved the report.
      So here’s the $64 million question. What would have happened if the NEB decided the project was a “designated project” under CEAA? The NEB would have sent a report on the impact of tanker traffic on killer whales to the GIC. The GIC would have had to decide under CEAA whether the significant adverse effect on killer whales could be justified or not under the circumstances. My guess is the GIC would have said it was justified.
      We shouldn’t lose sight of the fact Trans Mountain submitted a comprehensive spill risk and mitigation program, it required tankers to comply with its safety standards and restricted them from traveling north of 260 degrees (whale habitat areas), it submitted the marine transportation components of the Project to the Technical Review Process of Marine Terminal Systems and Transshipment Sites (TERMPOL) which found its commitment to marine safety appropriate for the increase in tanker traffic and the Feds committed to the Action Plan for Southern Resident Killer Whales and a $1.5 billion Oceans Protection Plan.
      I’m not sure what else Trans Mountain or the Feds could have done.

  9. Political Ranger says:

    I see the ‘duty to consult’ (Gitxaala) and the ‘right of consent’ (Tsilhqot’in) on a continuum. As you say, undefined but also undecided. Gitxaala is FCA and goes right up to but does not expressly deny that meaningful consultation equals consent. Tsilhqot’in is SCC and says, expressly, that this non-treaty FN in this case has a right of consent.
    As you know, the Courts can only decide law on a case by case basis. Our legislatures can make law by regulation. In regards to treatment of FN and the Environment our governments have been quite lackadaisical and even unfaithful at times.
    It would certainly be quicker and more lucrative for the corporate sector if our various governments would take their regulatory duties seriously but until such a time we are stuck with the Courts to define, and refine what is legal, fair and Constitutional.

    • Political Ranger, thanks for putting this case in the context of the SCC decision in Tsilhqot’in. The only thing I’d add to your comment about the “right of consent” is the SCC’s reference to the Delgamuukw decision and Lamer’s comment that “Government incursions not consented to…must be undertaken in accordance with the Crown’s procedural duty to consult and…justified on the basis of a compelling and substantial public interest, and must be consistent with the Crown’s fiduciary duty to the Aboriginal group.” Lamer described some interests that were potentially capable of justifying a government incursion. They were the development of agriculture, forestry, mining, and hydroelectric power, the general economic development (in that case the interior of BC), protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims.
      Given that Trans Mountain is now owned by the Federal government who says building a pipeline to tidewater is a matter of national interest I suspect the SCC may allow an incursion provided it is “undertaken in accordance with the Crown’s procedural duty to consult”.
      I agree 100% with your observation that things would go a lot more smoothly if governments took their regulatory making duties seriously.

      • Political Ranger says:

        From the preamble in SCC44: ” the incursion must be necessary to achieve the government’s goal (rational connection); the government must go no further than necessary to achieve it (minimal impairment); and the benefits that may be expected to flow from that goal must not be outweighed by adverse effects on the Aboriginal interest (proportionality of impact).”
        re para [77] To justify overriding the Aboriginal title-holding group’s wishes on the basis of the broader public good, the government must show: (1) that it discharged its procedural duty to consult and accommodate; (2) that its actions were backed by a compelling and substantial objective; and (3) that the governmental action is consistent with the Crown’s fiduciary obligation to the group: Sparrow.

        Again, from the preamble SCC44: “Allegations of infringement or failure to adequately consult can be avoided by obtaining the consent of the interested Aboriginal group.”
        re para [97] I add this. Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.

        That the Federal gov’t (Canada) now owns this project is of no consequence.
        First, because the Prime Minister and any number of other Ministers of Canada have said that federal ownwership is a stopgap measure to reduce financial risk for the eventual corporate owner. There fore this project is not so much a federal ‘asset’ as it is a ‘measure’.
        Secondly, Section 35.1 of the Constitution Act, 1982, as defined under Sparrow requires “any government regulation that infringes upon or denies [A]boriginal rights” to be justified. We hear National Interest’ being asserted but an assertion is a long ways from justification. See para [119], in part: “The constitutional recognition afforded by the provision therefore gives a measure of control over government conduct and a strong check on legislative power. While it does not promise immunity from government regulation in a society that, in the twentieth century, is increasingly more complex, interdependent and sophisticated, and where exhaustible resources need protection and management, it does hold the Crown to a substantive promise. The government is required to bear the burden of justifying any legislation that has some negative effect on any [A]boriginal right protected under s. 35(1).”

        This case, in my view, is a long ways from settled, primarily because it has not fairly, nor completely even begun.

  10. Bill Malcolm says:

    Excellent work. I now know a lot more than I did before and all thanks to you. Apparently our mass media was too lazy to investigate the latest FCA decision in detail, so you deserve kudos and a wider audience for this piece. It’s the kind of backgrounder we used to receive from a responsible press, which has dissolved into mere ranting based on viewpoints these days. Pretty much like the average citizen, nobody cares about facts, just what streams forth from their lack of knowledge and off the tops of their heads. Advising the world what they had for brekkie (with photos) seems to be what most people care about, and about which I personally could not care less.

    Congratulations. I’ll wait for this situation to play out rather better informed than before due to your work. It’s delightful to have a frame of reference. Bookmarked. Notley in particular should be sent a copy to help cope with her vindictive sulkiness.

  11. Honourable Nick Taylor says:

    Great job. Great analysis. Am wondering if we are not concentrating too much on the trees rather than the forest. Oil, hopefully dril-bit in a free market society will find its way to market.by truck, rail or pipeline, or maybe someday even dirigible. The alternatives besides a pipeline are rail (Now 200,000 BOPD, up from 100,000 14 months ago and could go to one-half million per day in next 18 months),truck (depends on whether governments want to subsidize or start a toll road).
    Rail and Truck cannot legally be stopped unless Pipeline which is cheaper and safer undercuts them..
    Lets quit how arguing how many angels can dance on the head of a pin and re-consult (about 65% indigenous approved) and put a speed limit on boats going through whale waters.
    Nick Taylor Calgary Ex Oilman, MLA and Senator and former president of Marine Offshore Terminals Ltd..

    • “Rail and Truck cannot legally be stopped unless Pipeline which is cheaper and safer undercuts them..” Well – I guess we weren’t an English major, were we? At any rate, Nick my boy, will you please cite ALL scientific evidence that proves “Pipeline (sic) which is cheaper and safer”? I await your learned response . . . not quitewith bated breath because, somehow, I doubt any response forthcoming. Oh, and you might want to redact this one, too . . . “Lets (sic) quit how arguing how many angels can dance on the head of a pin (sic) and re-consult (about 65% indigenous approved) and put a speed limit on boats going through whale waters.” Goof. Oh – and you are an ex-oilman? WOW!! SOO impressed, we are . . .

  12. Thank you for this. My advice was to read the court ruling but if I didn’t read all the related rulings I would be no further ahead. You have done it for us. We owe you for that. I would very much like more on the tanker traffic. A comment above said the increased traffic from TMX would be 14% of the expected increase in traffic. That was my understanding as well, that TMX alone was not going to suddenly flood the area with ships. Nor can we allow ourselves to be landlocked by whales if there are alternatives.

    • I agree Blog Fodder. If the people who are concerned about the impact of tanker traffic on killer whales are are sincere they should be going after the people responsible for the 86% of the increase in vessel traffic that’s not attributable to TMX as well. I don’t know if they’re simply not aware of this or it’s too tricky an issue because it would impact BC industries. Nothing is a simple as it seems.
      BTW: speaking of nothing being simple I just read an interesting analysis of the Project-relating shipping argument by a UofC law school professor who says the FCA was right to say the NEB should have included Project-related shipping in the Project description. I’m not sure I agree with his analysis but here’s the link in case you’re interested: https://ablawg.ca/2018/09/06/federal-court-of-appeal-quashes-trans-mountain-pipeline-approval-the-good-the-bad-and-the-ugly/#more-9982

  13. Mike Mcgonagill says:

    You get the FCA. We get Trump. Seems even.

    • Indeed! In both cases we can appeal to the Supreme Court. The beauty of the Supreme Court of Canada is it appears to be less partisan than the US Supreme Court.
      Who knew that the rule of law could be so ornery.
      PS. it’s good to hear from you Mike. Hope you and your family are well.

  14. Dwayne says:

    Susan: I must thank you once again for another very informative and well researched blog. I might add some other points. Those who were on the NEB were appointed by Stephen Harper. Also, what exactly did the CPC do to get a pipeline built to tidewater, when they had a big majority government and far greater oil prices? Nothing. With Energy East, economics played a role in that project not being completed. There are people who would like to blame Rachel Notley for this too. (Both pipeline issues.) That won’t work. There are issues related to this that are beyond her control. They also think that the CPC and also Jason Kenney would be able to solve this. I can’t see that, as Jason Kenney was once a part of the CPC, when these issues were happening, and nothing went forward. Also, there are people who think that Maxime Bernier will reslove this, despite that he was part of the CPC when this issue unfolded and nothing happened. Others think that Alberta should leave Canada and become part of the United States, as the federal government does not care about Alberta. They think the United States would be a good market for Alberta’s oil, if Canada does not want Alberta’s oil. I can’t see that happening either. The pipeline was for exporting our oil. Furthermore, there are people who thought that purchasing this pipeline was a waste of around $4.5 billion. They were mad at Rachel Notley and Justin Trudeau for this. Jason Kenney also favoured purchasing the pipeline. The Alberta PCs squandered around $35 billion on an bitumen upgrader, and many ignore that. There are also people who think that Alberta’s oil should benefit Canada, yet were opposed to Pierre Trudeau’s NEP, all those years ago.

    • Great points Dwayne. Harper made things more difficult when he took decision making authority out of the hands of the NEB and gave it to the GIC. That was an attempt to make sure pipelines would be approved, not denied, but it lengthened the process and made it even more confusing. The law of unintended consequences, eh.
      Of all the loopy ideas put forth the suggestion that Alberta should split from Canada and join the USA is the loopiest. We’d still be land-locked and our oil would still need to be upgraded and travel farther than the cheaper shale oils. The point of getting AB oil to tidewater is to get a new customer, staying with the one we already have accomplishes nothing.

  15. Marlow Currie says:

    again Sue you put the right perspective on this. I was at the NEB when this application was made, a difficult project when conflicting jurisdictions exist in our laws and regs. Keep up the observations and maybe someone in the government will start to listen. PS i was a proud hearing manager who oversaw the consultation process. The NEB covers more bases than it should have to.

    • Thank you for this Marlow! I was VP legal for a federally regulated pipeline and have first-hand experience with NEB hearings. I am in awe of the fine people at the NEB who are responsible for shepherding these complex and challenging applications through the process.
      The FCA said the NEB process was fair and reasonable. It said the NEB was an expert tribunal and “well positioned to assess the risks…and impose conditions”.
      If we don’t stop second-guessing expert tribunals and moving the goal posts it will be next to impossible to get pipelines approved in this country.
      You guys did a great job.

  16. Margy says:

    Excellent analysis, Susan. The Trans Mountain pipeline might drop off the radar for the Media, but there are a growing number of vocal individuals and groups who are actively delivering a pro-pipeline message! Blair King, at https://achemistinlangley.net/ is one of these voices.

    As for First Nation ‘duty to consult’, it makes me think of how different a process and the eventual outcome might be if an entity had to consult with a place like the City of Calgary vs having to consult with the almost 200 neighbourhoods of that city! Like neighbourhoods, First Nations have a wide variety of governments, ranging from self government to next to no government. Each Nation might have their own definition of “meaningful dialogue”.

  17. Thanks Margy. I finally had a chance to check out Blair King’s blog. It’s thoughtful, articulate and well researched (and by some weird coincidence Blair uses the same WordPress banner photo that I used before I switched to a photo I’d taken of the carp at the Royal Botanic Garden in Edinburgh).
    With respect to the duty to consult the courts have held that it must be specific to each FN, that’s one reason why the consultation process, properly carried out, takes as long as it does.

  18. jerrymacgp says:

    The fact this decision seems to put a serious monkey wrench in the ability to get any pipeline built, ever, is, in the view of environmental absolutists, not a bug but a feature. They will trumpet this from the rooftops as a victory in the struggle to forcibly wean our economy off of fossil fuels, even though the world clearly isn’t yet ready to stop buying them. Apparently it’s OK for other countries to sell oil & gas on the world market, but Canada needs to be more holy than the Pope. Good for the crunchy granola set… not so much for the tens of thousands of oilpatch workers who don’t know where their families’ next meal is coming from.

    Bitumen is a high-cost fuel source, and if the world reduces its demand for oil by shifting to renewables, it will be the first component of the market to reduce production. But if this happens naturally, rather than being forced by decisions like this one, other components of the industry, like conventional oil production and natural gas, will continue to support employment for some time. What the environmental absolutists want is to throw everybody out of work overnight.

    I don’t work in the ‘patch, but multiple members of my extended family do, and where I live—Grande Prairie—you can’t seem to swing a cat without hitting someone who works in the sector. No bitumen sands here, just pumpjacks and gas wells.

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