Tsleil-Waututh Nation demands marine shipping be included in Trans Mountain Expansion review

Tsleil-Waututh Nation says it raised marine shipping impacts from beginning of pipeline project review

The environmental effects of marine shipping are being considered in the Energy East pipeline review but were not included in the Trans Mountain Expansion assessment, says the lawyer for the West Coast Tsleil-Waututh Nation, and that is “not honourable.”

Scott Smith of Gowling WLG wrote on Aug. 24 to the Federal Court of Appeal – which will begin a judicial review of the Edmonton, Alberta to Burnaby, British Columbia pipeline project on Oct. 12 – asking that marine shipping be considered as part of the review.

“Canada has advanced a new and reconsidered position in Energy East that marine shipping must be included in the designated project assessed under CEAA, but continues to argue the opposite in relation to Trans Mountain without any explanation for treating these pipeline-to-terminal-to-tanker projects differently, all against the Tsleil-Waututh Nation’s considerable objections. That is not honourable,” Smith said in a statement emailed to North American Energy News.

The letter also noted there was “no consultation” about the impact of increased oil tanker traffic on the marine eco-systems by the Canadian government or the National Energy Board, which conducted the review of Kinder Morgan’s proposal to expand the capacity of the Trans Mountain system from 300,000 b/d to 900,000 b/d. Tanker traffic to the company’s Westridge Terminal would increase from three or four visits to approximately 34 per month.

Smith wrote that the Canadian government “did not act as required to resolve the deficiency.”

Kinder Morgan and the federal government opposed Tsleil-Waututh’s motion in submissions on Monday, telling the court separately Canada’s opinion on Energy East was “irrelevant” to Trans Mountain, according to Reuters.

James Coleman is an energy law professor at Dedman School of Law, Southern Methodist University. He says Tsleil-Waututh’s submission to the Court illustrates the inherent tension in administrative decision making.

“Every time a regulator adds a new layer to environmental reviews, it could be seen as an implicit indictment of the previous reviews that did not include that layer. Of course, you can’t redo every previous assessment every time you change the review process,” Coleman said in response to emailed questions.

“But the change can add some force to pre-existing arguments that earlier assessments were inadequate.”

Coleman says the classic environmental assessment deficiency is failure to consider a relevant factor that a party has asked the reviewing agency to consider from the start of the process.

“On the other hand, if TWN [Tsleil-Waututh Nation] didn’t raise this in its initial arguments (I don’t know if it did or not), courts are wary of parties adding new arguments at the last second,” he said.

Smith says Tsleil-Waututh Nation raised the issue of marine shipping “[f]rom the beginning. Including a separate appeal to the FCA that was dismissed on a without prejudice basis for TWN to raise the issue in a new proceeding.”

As of publication, the Federal Court of Appeal had not ruled on the  Tsleil-Waututh motion.

In a statement provided in response to questions from North American Energy News, Natural Resources Canada suggests that the NEB’s review of Trans Mountain Expansion was sufficient.

“In making the decision to approve the Trans Mountain Expansion, the Government considered many things, including the reports from the National Energy Board (NEB) and Ministerial panel for the Trans Mountain Expansion Project; Environment and Climate Change Canada’s assessments of potential greenhouse gas emissions; the views of Canadians; and what was heard during consultations with Indigenous peoples,” the statement says.

“The Government stands behind its decision on the Trans Mountain Project.”

Natural Resources Canada also repeated a favourite refrain of Prime Minister Justin Trudeau, that the Canadian economy is export-oriented and producers must be able to get their products international markets:

“One of the fundamental responsibilities of our government is to get our natural resources to market sustainably because Canada’s energy industry must remain a source of good, middle-class jobs for Canadians. The Government understands the importance of major resource projects to our economic prosperity and believes that projects must be reviewed on their own merit by a process that carries the confidence of Canadians. This project will create tens of thousands of middle-class jobs — in construction, in engineering, in finance, in spill response — many of which will be in Indigenous communities along the pipeline route.”

A recent economic impact study by the Canadian Energy Research Institute the national oil and gas sector makes a huge contribution to the national economy.

From 2017 to 2027, the study estimated that industry will makes capital investments of CAD$380 billion and generate operational revenues of CAD$1.8 trillion. The impact on Canada’s GDP will be CAD$2.7 trillion, including the creation of 6,572,000 person-years of employment.

While Alberta is the biggest winner, Ontario, Quebec, and British Columbia also enjoy significant economic impacts.

It’s not hard to see why Trudeau and Jim Carr, his natural resources minister, are playing hardball over Trans Mountain Expansion.

“We recognize that not everyone agrees with the decision made by the government but we remain committed to working with provinces, territories and Indigenous peoples to ensure a strong economy while taking leadership on the environment,” according to the Natural Resources Canada statement.