Trudeau’s government may have decided not to appeal the decision of the Federal Court of Appeal halting the TransMountain pipeline expansion but the fight is far from over says Eugene Kung of West Coast Environmental Law.

Story Transcript

SHARMINI PERIES: It’s The Real News Network. I’m Sharmini Peries, coming to you from Baltimore.

Less than two months ago, Canada’s Federal Court of Appeal overturned the approval of the Trans Mountain tar sands pipeline expansion by Justin Trudeau’s government. After Trudeau’s government’s historic loss at the Federal Court of Appeal, it announced that it would not appeal that decision to the Supreme Court of Canada. All of this has been hailed as a major victory by the environmental groups opposed to the construction of new fossil fuel infrastructure. But is the battle against Trans Mountain, which many describe as the Standing Rock of the North, truly over?

Now here to discuss all of this with me is Eugene Kung. Eugene is staff counsel at West Coast Environmental Law. He joins us today from Coast Salish Territories in Vancouver, B.C. Eugene, thank you so much for joining us today.

EUGENE KUNG: Good morning. Thanks for having me.

SHARMINI PERIES: All right, Eugene, let’s start off with why you think the Canadian government of Justin Trudeau is not appealing this decision to the Supreme Court.

EUGENE KUNG: Yeah. So I think there are probably a number of reasons that they made the decision not to appeal to the Supreme Court of Canada. Firstly, just on the legal grounds. It’s important to note that the Federal Court of Appeal didn’t create any new law in their decision. They applied the law that the Supreme Court of Canada and the Federal Court of Appeal before them had set out. And so there was no guarantee. In fact, I would say it was even unlikely that the Supreme Court of Canada would have granted leave or permission to hear the case. And then certainly the outcome of that case still had a lot of uncertainty.

And so moving forward, you know, we know that the Federal Government’s stated objective is to get the pipeline project back on track, and appealing it would have only added further delay and uncertainty. And so both for legal reasons and for pragmatic reasons I think they’ve made that decision. And it’s one that I think was probably the right one.

SHARMINI PERIES: And accepting, this is the right one for them. So accepting the terms laid out by the courts. Now the government would go and try to correct their path to the building of the project by consulting and doing meaningful consultation. Is that the plan?

EUGENE KUNG: That’s certainly what they’ve announced in their press conferences. The proof will be in the pudding, as they say. And certainly in the history of Canadian governments, not just this one, both provincial and federal, looking at court cases such as what we saw from the Federal Court of Appeal and reading them through this lens of trying to do the minimum, trying to find where the floor that the court is setting out is and aiming for that. You know, this is the exact type of approach that’s got this government into this situation in the first place, and I think unless there’s a fundamental change in the way that the government looks at these decisions, and not only looks for the minimum and aims for that, but actually aimsfor higher than the floor, only then are we going to kind of really start to see meaningful consultation and true progress on reconciliation.

It’s not clear to me that that is the case here, based on the very narrow scope that was given to the National Energy Board, and the very short amount of time they had to fix the one error around marine shipping, without considering how it plays with all the other issues, I think is one example of that. That certainly looks like they’re repeating the same pattern.

SHARMINI PERIES: And what happens if the Indigenous groups, Aboriginal communities, come together and really put their foot down here and say, no, we don’t want this built? How is the government going to react?

EUGENE KUNG: Well, I think it’s clear that that’s already happened. And you know, we’re talking about 120 First Nations along the route here. Only six of them were in court. But certainly many of those 120 nations are vehemently opposed to the project. Many have done years of work already in studying it, doing their own independent analysis and applying their own unextinguished Idigenous laws to the project. I don’t see that changing unless something very significant changes about the project and the project design.

And you know, let’s be honest. If we are adhering and applying the United Nations Declaration on the Rights of Indigenous People and within that free prior informed consent, then that consent is what’s required. That’s the standard that I hear the Indigenous peoples ask, demanding and requiring it moving forward. And I think, you know, it’s very hard to imagine this project moving forward-

SHARMINI PERIES: With the consent of the Aboriginal community in Canada. All right. Now, shortly after the federal court’s decision, the International Panel on Climate Change, IPCC, issued an alarming report on the state of climate, indicating that we have a mere 12 years to take drastic necessary steps to keep warming within the 1.5 degrees Celsius. Now, given that this report has released, and obviously the report impacts greatly on what the Canadian government is about to do with that transatlantic pipeline, what do you think is the viability of this project is based on that report that Trudeau himself in Paris said, you know, Canada’s back. We are here to honor the climate crisis we are facing?

EUGENE KUNG: Yeah. I mean, simply put, it’s incompatible with what we know has to happen in order to start to take the appropriate steps to try to avoid climate catastrophe. Pipelines typically take 40 to 50 to 60 years to pay themselves off over time. Here we’re talking about a pipeline that’s, you know, maybe couldn’t, you know, could be up and running, at the earliest, in 2021, ’22, if there aren’t any other significant delays. Which is likely, I would suggest.

So you know, we’re talking about 8 to 10 years just for it to be in service. And this is exactly why there is such opposition to this project, is because it takes us in the exact wrong direction in terms of climate action. Here in Canada we’ve heard a lot from the federal government about how the pipeline approval was a necessary tradeoff in order to get the federal climate plan, while now we have only two provinces left standing, essentially, in the climate plan, as various provincial governments have have taken steps to move away from that. And this is exactly why that trade off was fundamentally flawed to begin with. An asset, a piece of infrastructure that’s in the ground, is essentially a permanent thing. It’s not going to be pulled out. Whereas a piece of legislation or a climate plan, which was really the result of meetings and press conferences, can change in the whim of a new government, in a press release, in the stroke of a pen.

And so it’s, you know, it’s a fundamentally unbalanced tradeoff. I’ve been saying that it’s kind of like trading a perm for a face tattoo. It’s just not a good deal.

SHARMINI PERIES: Now, recently the Canadian government entered into a new trade agreement with the U.S. and Mexico that would now replace what was in place, NAFTA. Now, will this new trade agreement, which is called the USMCA, impede the ability of the Canadian government to regulate or even prevent altogether fossil fuel infrastructure projects of this sort?

EUGENE KUNG: So I mean, I think these trade deals in general have had a negative impact on states’ abilities to regulate and to take action on environmental issues. Many folks here in Canada, for example, speculated that it was the threat of a NAFTA suit that caused Canada to buy out Kintner Morgan in the first place back in May of last year. This new deal, I know, has some positives. You know, Chapter 11 is, the investor state dispute mechanism has been removed. And I think that is generally probably a good thing. But at the same time, we know that the environmental section is very weak. We know that there is no mention of climate change within it. And so I’m sure we’ll play into some of the conversation, but it is- these trade deals generally, I think, tend to have a downward pressure on environmental protection, rather than encouraging.

SHARMINI PERIES: All right, Eugene, I thank you so much for joining us today. There’s obviously so much more to talk about, but we’ll leave that for another time. Thank you so much for joining us now.

EUGENE KUNG: Thank you for having me.

SHARMINI PERIES: And thank you for joining us here on The Real News Network.