By JAMES KELLER, JUSTINE HUNTER
Saturday, June 15, 2019
CALGARY R VICTORIA -- The Trans Mountain pipeline expansion has been cast as the saviour of Alberta's energy sector - the single project that can lift the province's economy out of a persistent slump and send oil prices rebounding.
For Ottawa, it is a key test of Prime Minister Justin Trudeau's long-standing promise to champion oil pipelines to find new markets for Alberta crude. And to opponents, it is an existential threat to the environment and the climate.
The expansion has been stalled in the courts since last fall but a cabinet decision on Tuesday is widely expected to revive the project and set off a series of new legal challenges and protests.
Here's what you need to know about the expansion, how we got here and what happens next.
THE PIPELINE The existing Trans Mountain pipeline, built in 1953, sends up to 300,000 barrels of petroleum a day from the Edmonton region to British Columbia's Lower Mainland and Washington State. The pipeline carries a mix of diluted bitumen, light crude and refined products such as gasoline to a marine export terminal in Burnaby, B.C., a Parkland refinery also in Burnaby and refineries in the state of Washington.
The $7.4-billion expansion, which was first proposed in 2012, would more than triple the pipeline's capacity, largely to pump more diluted bitumen onto tankers for export to markets in Asia.
The expansion would add a second line through 980 kilometres of new pipe, nearly three-quarters of which would run along the existing route.
Last year, when it appeared that the pipeline's U.S.-based owner, Kinder Morgan, was preparing to walk away from the expansion, the federal government announced a plan to purchase the pipeline, the marine terminal and a spur line into Washington State for $4.5-billion with a long-term goal of finding a private buyer.
THE OPPOSITION The expansion has been the target of a long list of opponents, including several B.C. First Nations, environmentalists, the British Columbia government and the cities of Vancouver and Burnaby.
Opponents argue that the expansion would trample on Indigenous rights, increase the risk of a spill, endanger marine life and contribute to global warming.
Nearly two dozen legal challenges at the Federal Court of Appeal were consolidated into a single case and in August 2018, the court unanimously overturned the project's approval. Construction has been halted since.
Another flank of attack has come from the B.C. government.
The province approved the project under former premier Christy Clark but the 2017 provincial election resulted in a change to an NDP government and a reversal of that position. B.C. went to court seeking the power to limit the amount of heavy oil transported through the province - sparking a brief trade war with Alberta in the process. The case was rejected at the B.C. Court of Appeal but is now headed to the Supreme Court of Canada.
Meanwhile, civil disobedience against the project has not stopped. Burnaby RCMP have arrested 232 people seeking to block construction of the expansion project - most recently a 71-year-old climate-change activist who climbed a tree at Trans Mountain's Westridge Marine Terminal.
THE LEGAL CASE The Federal Court of Appeal ruling unanimously overturned the cabinet's original 2016 approval for the expansion.
The court concluded that Ottawa failed to adequately consult First Nations, essentially sending note-takers to listen to concerns from Indigenous communities without making meaningful changes to address them.
In response, the federal government appointed former Supreme Court of Canada justice Frank Iacobucci to oversee a new round of consultations with First Nations. An earlier May deadline for cabinet's decision was extended to give those consultations more time to wrap up.
Eric Adams, a law professor at the University of Alberta, said the court found that the government was simply "going through the motions" in earlier consultations.
"What's going to be critical is that the government can demonstrate substantive accommodations, substantive alterations, substantive negotiations that yielded something tangible," Prof. Adams said.
The judges said a "brief and efficient" process could be enough to address their concerns.
The ruling also said that the initial cabinet decision rested on a flawed review by the National Energy Board that "unjustifiably" did not include tanker traffic related to the project, threatening endangered southern resident killer whales.
The NEB responded by holding another round of hearings, with a report released earlier this year that again recommended the project be approved while adding a number of new conditions and recommendations PIPELINE POLITICS The dispute has opened up deep divisions between B.C., Alberta and Ottawa.
The BC NDP came to power in B.C. in 2017 on a promise to use "every tool in the toolbox" to oppose the Trans Mountain expansion. The dispute prompted Alberta's former NDP premier, Rachel Notley, to stage a brief boycott of B.C. wines and threaten to shut off oil shipments to the West Coast.
Alberta Premier Jason Kenney, who won the province's April election, has escalated that fight, enacting legislation to "turn off the taps" to B.C. and launching a million-dollar ad campaign blaming B.C. Premier John Horgan's opposition to Trans Mountain for high gas prices.
He has also promised a provincial referendum that would call for equalization to be removed from the Constitution if there isn't progress on Trans Mountain soon.
Mr. Kenney has also used frustrations over the delayed pipeline project to stoke anger against the federal government and rally opposition to environmental legislation. However, neither Bill C-69, which would overhaul the environmental approval process, nor Bill C-48, which would ban oil tankers off B.C.'s northern coast, would affect the Trans Mountain proposal.
WHAT HAPPENS NEXT Tuesday's federal cabinet meeting - the final scheduled gathering before the fall election - is expected to end in a renewed approval for the Trans Mountain expansion with additional conditions.
If that happens, it's not clear how quickly construction will restart. Trans Mountain, now a Crown corporation, said in a statement that there are "regulatory and commercial steps" that must happen first, such as co-ordinating with contractors and ensuring that the project meets preconstruction conditions. Supporters have said they hope shovels will be in the ground by fall which would be in time for the federal election.
Environmentalists say thousands of people have signed up to lie in front of the bulldozers in acts of civil disobedience along the pipeline route. Indigenous communities that have successfully stalled this project before will once again be contacting their legal teams.
"If they try to start construction, we will see protests and blockades that won't just be Greenpeace - there are a whole bunch of people on the coast who are willing to put their bodies on the line," Greenpeace Canada's senior energy strategist, Keith Stewart, said.
The Tsleil-Waututh Nation, one of the six Indigenous communities that successfully led the court challenge, argues that the federal government has still not addressed the concerns of the Federal Court of Appeal about meaningful consultation with Indigenous communities. That argument will likely frame further lawsuits.
"It doesn't matter who owns it, that doesn't change how bitumen reacts in water," said Charlene Aleck, an elected councillor of the Tsleil-Waututh Nation. Ms. Aleck heads the Sacred Trust Initiative, which runs the campaign against the expansion. She said chief and council will meet with their community to discuss next steps, but she said more legal action is on the table.
As an NDP MP, Kennedy Stewart was arrested in 2018 while protesting against the pipeline. Now, he's mayor of Vancouver: "I have a different role. It's still to oppose, but you won't see me being arrested again." The city has intervened to support legal action by others, including the province and First Nations. That's likely the approach the city will take again if the project is approved once more.
B.C.'s Minister of Environment and Climate Change, George Heyman, said his government is poised to file its reference case in the Supreme Court of Canada, seeking authority to limit any increase in oil shipments.
FIRST NATIONS OWNERSHIP A new approval could also accelerate efforts by pro-development First Nations to purchase a stake in the project. Several groups, including Project Reconciliation and Iron Coalition, have been recruiting First Nations and Métis communities as they seek funding from investors. The new Alberta government plans to offer loan guarantees to help those efforts.
Chief Tony Alexis of the Alexis Nakota Sioux Nation, who is cochair of Iron Coalition, said Indigenous communities that oppose the pipeline need to be heard and that he hopes he can bring them onside.
"We look back 60 years ago to the first Kinder Morgan pipeline that went through our area. The benefit to the First Nations and Indigenous communities from that line was zero," Mr. Alexis said.
"What we're saying is that if this project is going to go through, we need to participate."
The Trans Mountain pipeline expansion project is widely expected to be revived by Ottawa on Tuesday, which would likely set off an array of legal challenges and protests.
DARRYL DYCK/THE CANADIAN PRESS