Supreme Court dismisses Burnaby case against Trans Mountain pipeline

A aerial view of Kinder Morgan's Trans Mountain marine terminal, in Burnaby, B.C., is shown on Tuesday, May 29, 2018. Image Credit: THE CANADIAN PRESS Jonathan Hayward

August 23, 2018 - 9:00 PM

The leader of an Indigenous group that hopes to someday own a stake in the Trans Mountain pipeline is encouraged that the Supreme Court of Canada's rejection of an appeal by the anti-project City of Burnaby inches the expansion closer to construction.

"I have the feeling, at the end of the day, it's going to clear all the hurdles that remain of a legal nature and so I'm happy at this ruling," said Cheam First Nation Chief Ernie Crey.

Canada's top court announced Thursday it has dismissed an application from the City of Burnaby in British Columbia, which had asked it last spring to consider overturning a lower court decision that denied the port city leave to appeal a ruling by the National Energy Board.

That clears a significant hurdle for the pipeline, though it still faces a legal challenge from First Nations groups.

When the federal government agreed in May to buy the pipeline that spans from Alberta to the B.C. coast and related infrastructure for $4.5 billion from Kinder Morgan Canada Ltd., it signalled that it didn't intend to own it for the long term and would sell it as soon as possible.

Although many B.C. First Nations oppose the pipeline — and several are parties to a Federal Court of Appeal challenge of Ottawa's project approval in 2016 — 43 First Nations have signed benefit agreements, Crey pointed out.

"There is growing interest on the part of Indigenous people to take out a stake in the pipeline," he said.

"They (may) have the option of buying shares, of course, but my impression from the leadership I've talked to in Alberta, Saskatchewan and B.C., is they want a substantial interest in the pipeline."

The City of Burnaby and environmental groups vowed to continue to fight the pipeline despite the setback.

“Burnaby is not going away. We intend to continue to oppose this project with all legal means available to us, and will be continuing with our other legal challenges,” said Burnaby Mayor Derek Corrigan in a statement that listed three pending court challenges and an NEB proceeding.

"We're disappointed by today's decision as what we are seeing is the federal government railroading over municipalities just trying to protect the health and safety of their citizens," said Greenpeace campaigner Mike Hudema.

He said the project still faces significant delays and court challenges, as well as growing resistance on the ground.

The federal and Alberta governments welcomed the Supreme Court dismissal.

A spokesman for Natural Resources Minister Amarjeet Sohi said the government stands by its decision to buy the pipeline, noting it is needed because it will provide access to new markets for Canadian crude and create new jobs.

"We have taken an approach to resource development that will grow our economy and protect the environment. These priorities go hand-in-hand," said Emerson Vandenberg in an email.

The Alberta government is "batting a thousand" when it comes to fighting for the Trans Mountain pipeline expansion, Premier Rachel Notley said Thursday on social media, noting the courts have made 17 straight rulings in favour of Trans Mountain.

"When the City of Burnaby tried to block the Trans Mountain pipeline in court, we intervened — and we won in court and we won again today," she said.

Alberta has pledged to spend up to $2 billion, if needed, to keep the project going.

In a statement, Kinder Morgan said it was "pleased" with the Supreme Court decision.

If the federal government succeeds in closing the deal to buy the pipeline, it faces remaining expansion construction costs estimated at $6.3 billion ($1.1 billion has already been spent), although a recent report from Kinder Morgan suggested those costs could rise by as much as $1.9 billion under certain scenarios.

The government probably won't try to sell the pipeline until the expansion is finished because it will be worth more when legal and construction risks are eliminated, said Richard Masson, executive fellow at the University of Calgary's School of Public Policy.

"My guess is the federal government will set up a company to own the pipeline," he said.

"Once it's up and running and the risks are much lower, they would say, 'OK, now we're going to consider either selling it to another company like Enbridge or TransCanada or we're going to do an initial public offering of the shares.'"

The NEB ruling allowed Kinder Morgan to bypass local bylaws regarding plan approvals and tree-cutting permits during construction in the Burnaby area for the expansion, which is to triple the amount of diluted bitumen and other oil products moving between the Edmonton area and the port. Kinder Morgan had complained of unreasonable delays by Burnaby in issuing the permits.

Earlier this week, protesters outside a cabinet retreat in Nanaimo, B.C., accused Prime Minister Justin Trudeau of fiddling "while B.C. burns," referring to the province's raging wildfires that some have attributed to climate change.

The cabinet met with B.C.'s NDP premier, John Horgan, who reiterated his government's staunch opposition to the pipeline expansion project, which he said would result in a seven-fold increase in tanker traffic off B.C.'s coast and, thus, increase the chances of a "catastrophic spill."

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