NSBIA – The Trans Mountain decision and what it means for business

(Kinder Morgan photo)

From the Kamloops North Shore Business Improvement Association newsletter of Sept. 5, 2018:

THE POLITICAL POSTURING and hype has died down and now the reality of last week’s court decision regarding the Trans-mountain pipeline can really begin to set in.

Make no mistake, the decision is a devastating blow to international economic development in Canada. It will affect thousands of workers in dozens of industries and will serve as a warning sign to international investors that the Province of B.C. and Canada are dangerous and unpredictable territory, when it comes to investing.

The simple truth contained in the Court’s decision is that sections of the file have been mishandled, the result of which is the immediate suspension of the project. This is an economic blow to us here in Kamloops, across B.C. and the country. We will now have to suffer the results of the shutdown, as well as determine if, and how to move forward.

With this decision also comes some hard questions: Who is to blame for the failure of the project? How did the National Energy Board miss the critical factor of the endangered Orcas in its report to the Cabinet? and, How did the consultation process fail to satisfy the Court?

Let’s start with the consultation piece. First Nation treaty and consultation rights are entrenched in a number of legal decisions dating back over decades. This process is very well defined in a Federal Government website that clearly outlines the process.

In the court’s ruling, it was determined that the process was acceptable, however, the concerns raised during the consultations were not addressed by the crown. This means that any concerns must be given real credence and actions must be taken to mitigate those concerns.

(From the Court Decision) [6] Applying the largely uncontested legal principles that underpin the duty to consult Indigenous peoples and First Nations set out by the Supreme Court, I also conclude that Canada acted in good faith and selected an appropriate consultation framework. However, at the last stage of the consultation process prior to the decision of the Governor in Council, a stage called Phase III, Canada’s efforts fell well short of the mark set by the Supreme Court of Canada. Canada failed in Phase III to engage, dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns. The duty to consult was not adequately discharged.

Secondly, the scope of the project review failed to include the consideration of tanker traffic associated with the project. This means that the official scope did not include core activities that were associated with the shipping of the oil beyond the terminal.

(From the Court Decision) [5] Applying largely uncontested legal principles established by the Supreme Court of Canada to the factual record, a factual record that is also largely not contested, I conclude that most of the flaws asserted against the Board’s process and findings are without merit. However, the Board made one critical error. The Board unjustifiably defined the scope of the Project under review not to include Project-related tanker traffic. The unjustified exclusion of marine shipping from the scope of the Project led to successive, unacceptable deficiencies in the Board’s report and recommendations. As a result, the Governor in Council could not rely on the Board’s report and recommendations when assessing the Project’s environmental effects and the overall public interest.

The Court had no option, but to rule the way it did due to the serious flaws in the National Energy Board report to Cabinet.

The National Energy Board, and the Crown (Government) have failed to follow the guidelines they have laid out and that the court have affirmed through numerous cases; They have failed to effectively execute the steps required to address concerns raised in the consultation process, and the step necessary to be taken; They failed to consider the impacts on wildlife and the environment.

This means the government has failed in the execution of this project plan.

Even if the Government of Canada acts quickly to resolve these issues, experts are pondering the delay could be two years at best case scenario. This delay means the project has now become an albatross around the neck of Government, who now have 4.5-plus billion taxpayer dollars tied up in a project with a questionable outcome. As an international investor, I would seriously question Canadian Non-Renewable Project Investment, until the government gets their house in order and can provide some surety as to outcomes.

About Mel Rothenburger (9225 Articles) is a forum about Kamloops and the world. It has more than one million views. Mel Rothenburger is the former Editor of The Daily News in Kamloops, B.C. (retiring in 2012), and past mayor of Kamloops (1999-2005). At he is the publisher, editor, news editor, city editor, reporter, webmaster, and just about anything else you can think of. He is grateful for the contributions of several local columnists. This blog doesn't require a subscription but gratefully accepts donations to help defray costs.

3 Comments on NSBIA – The Trans Mountain decision and what it means for business

  1. Under ISDS provisions it was probably “in the national interest” to buy the pipeline rather than risk being sued. Surely it was known a court ruling like this was likely. So why does Mr. Trudeau insist on retaining ISDS clauses in all trade agreements?

  2. You have missed one of the key factors in the court decision.The Salish sea and it’s wildlife would not be protected with an oil port on Roberts bank. If the pipe were to be re- routed it should go out through Prince Rupert. Thats closer to the oriental market they are seeking and it must terminate beyond any shoreline infrastructure or wildlife.Impact on first nations must be reduced to near zero,Which ,with they’re input and knowledge could be accomplished .But you would need to treat them with respect which you don’t seem to want to do.

  3. To many, the big obstacle is having the pipeline end up in the middle of an urban area, then loading the bitumen onto large tankers that then have to maneuver through the narrow channels of Burrard Inlet, underneath two major arterial bridges to finally get to the open ocean. Why doesn’t the government reroute the pipeline down along the border to a distribution centre out by Robert’s Bank? We should be working to get all the heavy industry off of Burrard Inlet and eventually redesign all the shoreline to be used by people, like Sydney Australia did. It may cost more money now, but what would the cost be, traffic wise as well as monetarily, to replace 2nd Narrows bridge if a tanker ran into one of the pillars, like what happened in Hobart, Tasmania? I’m sure the powers at be, at that time, also said it would never happen, but it did.

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