The provincial NDP government has dug deep into its past, and Canada’s as well, to help fight the Trans Mountain Pipeline expansion that is expected to triple the oil shipped by Kinder Morgan from Edmonton to Burnaby.

Attorney General David Eby and Environment Minister George Heyman announced at a press conference Thursday morning the provincial government has hired Thomas Berger as external counsel for all legal actions related to the pipeline expansion.

article continues below

Berger, 84, fits the bill on many counts for the new government. He’s a former Vancouver NDP MP (1962-1963) and MLA (1966-69). He was provincial party leader briefly in 1969, prior to Dave Barrett taking over and becoming premier in 1972. That’s when Barrett appointed Berger as a B.C. Supreme Court Judge. He went on to lead three federal royal commissions, including one on the MacKenzie Valley Pipeline (1974-77) and another on Indian and Inuit healthcare (1979-80). Since then he has done a lot of work with First Nations.

Eby said Berger is still active, including appearing before the Supreme Court of Canada last year.

“He is a living example of modern first nations law in Canada,” said Eby.

The province will seek intervenor status for the National Energy Board judicial review slated for federal court in November. Eby said there are 21 parties challenging the NEB process and decision, and he will seek advice from Berger on the province’s intervention.

In addition, the Squamish First Nation has gone to court to challenge the adequacy of the consultation process by the province. The provincial government is named as a respondent in that case, but the current regime agrees with the First Nations’ contention there wasn’t enough consultation done by the previous government.

“We’re also asking Mr. Berger to advise us on any other legal tools that we should be looking at … to protect our interests,” said Eby.

Kinder Morgan recently announced it would begin construction on portions of the pipeline in September. Hyman said eight permits have been issued but they can’t be acted on until the company meets the requirements of the environmental assessment certificate issued by the previous government.

“Only three have been accepted to date and the other five have not been accepted because they have not, according to the environmental assessment office, met the test of adequate consultation with First Nations,” said Heyman. “Until those plans are completed, Kinder Morgan, with the exception of private land and some clearing of rights of way, cannot put shovels in the ground. They need to have those work plans accepted. It is highly unlikely that can be completed by Sept. 12, and until it is completed they are not able to begin work. They will be in violation of their environmental assessment certificate, the one that exists today.”

In a press release, Kinder Morgan said it was taking seriously the comments from Eby and Heyman and will review them. It also said Trans Mountain is willing to meet with the government to work through the concerns and issues the ministers raised.

“We are committed to working with the province and permitting authorities in our ongoing process of seeking and obtaining necessary permits and permissions,” said Kinder Morgan president Ian Anderson in the release. “We have undertaken thorough, extensive and meaningful consultations with Aboriginal peoples, communities and individuals and remain dedicated to those efforts and relationships as we move forward with construction activities in September.”