Judge unhappy with BC government over late, skimpy application for pipeline intervener status

BC caught between appeasing Trans Mountain Expansion opponents, avoiding Kinder Morgan lawsuit

The BC government was granted intervener status Tuesday in the judicial review brought against the Trans Mountain Expansion pipeline project by the  Tsleil-Waututh Nation,  but Federal Court of Appeal Justice JA Stratas wrote that the approval was a close call because of Attorney General David Eby’s tardiness and the skimpiness of the motion. What game is the Horgan government playing at?

Stratas says he made it very clear back in March to the 20-odd parties to the application that “owing to the substantial interests of all parties in these proceedings, the proceedings should be prosecuted promptly,” with scheduling changes only permitted “if absolutely necessary.”

The BC NDP formed government on July 18, held a press conference on Aug. 10 to announce that it had tapped noted jurist Thomas Berger to advise it on TMX legal strategy and planned to apply for intervener status in the Tsleil-Waututh Nation action, but dallied and only filed its motion on Aug. 22.

His Honour was not pleased.

“A number of aspects of British Columbia’s motion are unsatisfactory,” he wrote, clearly annoyed, including the fact that “it took five weeks for British Columbia to bring this motion, a very long time in a closely-managed, expedited proceeding such as this.”

Then he took Eby and the government to task for an unsatisfactorily vague description of the issues BC intended to address: “British Columbia says that it considers its participation in the proceedings important, yet after five weeks it cannot yet say with much specificity how it intends to participate.”

Worse yet was Stratas’ not so veiled shots at incompetence in the BC attorney general’s office.

“British Columbia does not appear to understand the basic ground rules of the complex proceeding it is seeking to enter. Its representations in chief show no understanding of the March 9, 2017 Order and the strong public interest in the hearing going ahead as scheduled,” he wrote.

“It was unaware of other important orders made in the proceedings relating to the manner of service and the style of cause. To enter complex proceedings—especially at a very late date—a party must intimately understand the proceedings and to the extent possible work within existing strictures, doing its best to minimize any prejudice. Here, this did not happen.”

Ouch.

Stratas said he was temped to deny BC’s application, but allowed it only because Alberta is an intervener and “the public interest of British Columbia deserves a voice too.”

A pity decision. Double ouch.

By now, reasonable readers are probably asking, Surely Eby and his stable of government lawyers can’t be that inept? Is there something else going on here?

The answer is, maybe, according to Prof. James Coleman of the Dedman School of Law at Southern Methodist University and an expert on North American energy law.

“My best guess is that BC’s tardy application and its lack of clarity can be explained by the same thing: BC’s government is finding it genuinely difficult to come up with arguments for stopping the pipeline that don’t look like a bad faith effort to frustrate federal authority or B.C.’s previous assessment of the pipeline,” he wrote in an email.

Eby has acknowledged before that in the event the Trans Mountain Expansion project is stopped by a combination of BC government and First Nation legal efforts, BC may be the subject of civil lawsuit from Kinder Morgan, which could conceivably ask for damages in the billions of dollars.

The BC NDP spent a great deal of time and effort demonizing Trans Mountain Expansion while in opposition and on the campaign trail – and those words can be used against them in a court of law, according to Coleman.

“If it looks like BC is acting in bad faith, it will increase the chance that the federal government overrides provincial objections or that Kinder Morgan may win compensation for the BC’s reversal on the pipeline,” he wrote.

Coleman also speculates that because the Horgan NDP minority government is propped up by the Green Party, that leader Andrew Weaver is pushing for much tougher action, but Eby is “concerned about the legal consequences of such an aggressive stance.”

The delays and lack of clarity in its intervener application has some immediate consequences for BC.

Stratas insists that the Horgan government must file its “memorandum of fact and law” by the same date as other applications: Sept. 1.

This Friday. Two days from now.

If Eby and company could barely get it together for the intevener application, what are the odds of a polished argument about the facts of a very complex case, never mind the law that applies to it, by Friday?

But perhaps this is the Horgan/Eby strategy.

No one in Vancouver is paying attention to the attorney general’s bumbling. The few headlines from yesterday will soon be forgotten.

If the Tsleil-Waututh Nation and other applicants fail, as is likely according to my legal experts, Eby can point to the BC government’s intervener status as evidence the NDP used “every tool available” to oppose Trans Mountain Expansion as promised.

Which means the entire intervener application – including Environment Minister George Heyman’s stern warning to Kinder Morgan not to “put shovels in the ground” without BC’s permission – is nothing more than political theatre, a way to appease the militant opponents of the pipeline while minimizing its exposure to a costly future lawsuit.

No wonder Kinder Morgan appears ready to fire up the bulldozers on schedule, as I wrote in yesterday’s column. The Horgan government’s case against Trans Mountain Expansion is weak and getting weaker.