By now all Severely Normal Albertans (not living under rocks) have heard of the TransMountain wreck. Three judges from the BC Federal Court of Appeal put their heads together and found a couple of reasons to quash the approved pipeline.
Nobody from any side of the debate saw that coming! Based on the evidence, the project has been thoroughly vetted and approved after an overly lengthy process.
But the Judges, breathing the rarified, precedent imbued air of the court, sifted through all the evidence and finally came up with a couple of reasons to quash the approval.
Stay with me now…. I will try to summarize the conclusions they reached. But you can read the decision for yourself – check out paragraphs 438 – 455 and 549 – 560. https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/343511/1/document.do
So here goes…. the National Energy Board (NEB) thought it was supposed to review a pipeline. It mostly stuck to that task. It did however, assess the ocean-side risks and identified several threats and consulted with various agencies about those risks. Because it doesn’t have jurisdiction over coastal waterways and couldn’t put effective conditions on the pipeline owner for tanker traffic, it decided the tankers were outside its jurisdiction.
Not so fast said the Judges! ‘You discovered that the endangered Orca whales would be adversely impacted about twice daily by a tanker!’ The NEB referrals to various agencies didn’t turn up any brand-new ways (beyond the extensive efforts already in place) to mitigate the noise and risk of collisions. But the Judges were unhappy. So, the Judges judged that the Cabinet was given an incomplete report and thus the entire approval must be quashed.
If you thought the Judges are picking ‘fly poop out of pepper’ it gets more complicated.
The Judges also found the Indigenous consultation was inadequate. The Judges third chose to second guess the NEB handling of the third round of consultations. The problem was ‘you didn’t engage in a meaningful dialogue’. So, the Judges judged that the NEB’s perceived reluctance to put everything from earlier phases back on the table was inappropriate.
Back here on earth, we might remind ourselves that Vancouver receives 250 vessels monthly and the bitumen tanker traffic will represent less than 15% of the total. As Vancouver Port gets even busier it doesn’t seem the Judges’ intervention will do much to reduce the risk to the Orca pod.
And while our feet are on the still on the ground, do you suppose the Judges’ mental model was that the Indian Bands were unsophistocated at the consultation game.
- Did the Judges assume that these meetings were the only way dialogue (read negotiation) occurs? The Tsleil-Waututh Nation and the other 5 bands are all lawyered up and well-funded by environmental groups and the NEB.
- Were the Judges under the impression that the Bands were really interested in a ‘meaningful dialogue’? The Tsleil-Waututh for example, have been to the federal Court of Appeal six times previously – so were ‘consultations’ ever more than a charade?
There is a tone in the Judges’ decision that blames the NEB as sloppy or unprofessional. But if you have every had a brush with federal regulators, they are not sloppy… bureaucratic maybe – sloppy no.
It is hard to calculate how much harm this decision will bring to Canada. We can quantify the economic loss from selling our products at a discount. We can figure out the potential for job losses and increased project costs. We can probably calculate the number of hours lawyers will spend on this in the next two years. We can even estimate the impact to our reputation for investment.
It is harder to calculate the societal costs. We are more divided, confused and frustrated than ever before by resource development and indigenous issues. The political costs will be grave in Alberta. NDP MLAs will be scarce after the next election. Come to think of it, Liberal MPs might be as politically endangered as killer whales.
Perversely, it is the environment that will take it on the chin. Other sources of oil (perhaps from Venezuela and Saudi Arabia) will send tankers of oil to China and India without worrying about stunts from environmentalists dangling from bridges. In Canada, public resistance to the carbon tax is mounting. Will the federal Liberals have the political capital to spend to meet the Paris Accord target? Will Orcas be just as endangered as before?
The federal government has made a hash of resource development in Canada:
- Remember the loose rhetoric about social licence?
- And the endorsement of the United Nations Declaration on Indigenous People with the confusing language about “free, prior and informed consent” that is unworkable under Canadian law.
- How about the Liberal election campaign denigrating the regulatory agencies?
- What about the promised legislation on the pipeline that never came?
- Then buying the pipeline because the delays and uncertainty reached unacceptable levels for a private investor.
The federal government needs a “Come to Jesus Moment”.
- It is forced to do more consultation (negotiation) with indigenous groups who will never support the pipeline.
- It will have to refer the file to the Supreme Court.
- It ought to bring in legislation to sort out the rules of resource development more clearly.
- And Premier Notley hopes they can screw up enough courage to pass an act to support construction of the pipeline in the national interest.