BC NDP govt can’t ‘un-ring bell’ of inflammatory anti-Trans Mountain Expansion rhetoric – law prof

David Eby campaign graphic. Photo: David Eby/Facebook.

The BC NDP government of John Horgan is proceeding cautiously with the Trans Mountain Expansion pipeline, not wanting to expose the Province to a lawsuit, according to Attorney General David Eby, especially since it’s not yet clear exactly how much authority the province has to stop the project.

The MLA for Vancouver-Point Grey told a Kamloops radio host that British Columbia must work within provincial and federal law or it faces legal action from American pipeline giant, Kinder Morgan.

Eby started the pipeline portion of the interview with some boilerplate talking points about how the file is “critically important to many British Columbians who care about our coastline and are concerned about the future in relation to climate change,” and how important it is to prevent spills of “toxic” bitumen.

“There is an important piece to that, which is that we must do so within the laws of British Columbia and Canada, because if we won’t, we’ll be sued and we’ll end up paying hundreds of millions of dollars that should be going to schools and hospitals to an oil company,” Eby told Jim Harrison of 610 AM.

“That is not a goal that anyone is looking for. So I’m currently being briefed by the lawyers in the Province about our options.”

Eby noted that his cabinet colleagues in the ministries of environment (George Heyman, a former director of the Sierra Club BC) and transportation (Claire Tevena, a former CBC reporter) are also being briefed about the permits.

BC Environment Minister George Heyman, left. Photo: George Heyman/Facebook.

Heyman, in particlar, was a vocal critic of the 525,000 b/d project, which will twin the existing Trans Mountain pipeline.

“We will look at every means available, and we’ll do whatever we can,” Heyman told the Georgia Stait last year. “We know this project is a terrible one for British Columbia. We know British Columbians want us to defend our coast.”

Those kinds of statements by his candidates may yet come back to haunt Horgan.

James Coleman, a professor at the Dedman School of Law, says the inflammatory rhetoric could be critical if Kinder Morgan sue for damages in the future.

“That’s why the government is trying to soften the language in the NDP-Green agreement that promised to use ‘every tool’ to ‘stop’ the pipeline. That made it sound like the new government would not act in good faith, which will hurt them in court,” Coleman said in an email.

“So now they’re saying that they will just follow the law and ‘defend’ BC’s interests. I’m not sure that you can un-ring that bell, but they’re trying.”

Coleman says the danger of a lawsuit is constraining in three ways.

“First, as the attorney general says, the government would rather avoid paying money to Kinder Morgan. Second, it never looks good to have a credible allegation that the government has violated the law,” he said.

“Third, the new government doesn’t want to give BC a reputation as a place where it’s unsafe to invest.”

Prof. James Coleman.

Even though the Horgan government may have to move more cautiously than promised during the campaign leading up to the May election, Coleman says the Province and municipalities can still delay issuing permits.

“Getting permits may be a challenge for Kinder Morgan and, if it takes too long, the company may have to go to the National Energy Board, as it did with the City of Burnaby, to get an order to get its permits,” he said.

“But if the NEB, the federal government, or the courts feel that the BC government is not acting in good faith – i.e. that it is just dragging its feet rather than insisting on normal permit terms – they may be quicker to step in and help Kinder Morgan.”

And Trudeau has plenty of incentive to intervene aggressive on Kinder Morgan’s behalf. One could argue – as Alberta Premier Rachel Notley has in public a number of times – that the integrity of Canada’s regulatory bodies and the Canadian government is at stake.

“I’d say that the Prime Minister and the federal government certainly wants to make sure that investors can have confidence in the established laws and procedures for approving inter-provincial projects,” said Coleman.

“That issue goes beyond pipelines because Canada is hoping to attract investment to other parts of its energy sector and other parts of the economy.”

The “rule of law” is an industry line and not very popular in British Columbia. Pipeline opponents were very successful portraying the NEB review of Trans Mountain Expansion (and the now cancelled project, Northern Gateway) as corrupt and captured by industry.

Having the NEB stand four-square behind an American energy corporation plays into the political narrative commonly heard in Vancouver that the review process was rigged in favour of Big Oil.

But Eby’s caution during his radio interview suggests Horgan and his key cabinet members on this file understand the stakes very well and are moving carefully, trying to avoid a misstep.

Coleman argues that some of the BC government’s caution is that the Province’s authority with respect to Kinder Morgan will probably be clarified by lawsuits currently before the courts.

But will there be clarification before Kinder Morgan begins construction in Sept., as the company promised?

So many uncertainties, so little time to resolve them before the anticipated protests begin this fall.

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