Legal challenges could stall decision on Kinder Morgan pipeline: experts

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$5.4-billion project faces constitutional, aboriginal and procedural actions

The federal government’s efforts to speed up decisions on oil pipelines are at risk of backfiring, according to legal and policy observers.

In the first real test of the National Energy Board’s new review rules, Kinder Morgan’s $5.4-billion Trans Mountain pipeline is being assailed with legal action and a flurry of motions calling for a more open and lengthy public process.

The federal review of the pipeline expansion — which will nearly triple oil output and bring another 400 tankers each year to the Burrard Inlet — is set to begin in August and supposed to be complete in 15 months.

But the challenges — particularly those from First Nations — have the potential to be successful and delay a decision on the project, says University of B.C. law professor Gordon Christie.

“It’s kind of ironic because the (Conservative federal government’s) stated aims for doing this (changing laws) to streamline the process may come back and bite them,” Christie said.

“Changing things this way creates more kinds of arguments for lawyers to dig their teeth into,” said Christie. “If the legal process plays out the way it is supposed to, this will delay things.”

In 2012, the Conservatives introduced amendments to laws to tighten federal review timelines after they said Canada’s regulatory review process was being hijacked by “radical” environmentalists, unnecessarily delaying decisions on important industrial projects such as oil pipelines.

A week ago, environmental group ForestEthics and several Lower Mainland residents filed a constitutional challenge to the NEB that alleges its process unduly restricts participation, which is a Charter violation of freedom of speech.

Days earlier, the Tsleil-Waututh First Nation launched legal action at the Federal Court of Appeal arguing the federal government and the NEB failed to properly consult it before setting up the review. And the Paceedaht, Katzie and Cowichan First Nations have asked for the hearing of their traditional knowledge scheduled this summer to be moved because it conflicts with their annual salmon harvest.

The month before, economist Robyn Allan, a former ICBC CEO, filed a motion to the NEB to reinstitute oral cross-examination as fundamental to a proper review. The NEB says the written cross-examination is an adequate method and interveners still have “the opportunity to make their case.”

Allan’s motion is supported by a coterie of B.C. municipalities, including Vancouver, Burnaby, West Vancouver and tiny Valemount in northern B.C.

Also last month, Marc Elieson, a former BC Hydro CEO and longtime provincial and federal bureaucrat mostly under NDP governments, filed a motion with the NEB alleging bias of the review panel’s chair.

Both Elieson and Allan say they will appeal the NEB’s rejection of their motions.

Several motions, including from the City of Vancouver, have called for more time to scrutinize documents and file questions.

Simon Fraser University professor Doug McArthur said he believes the federal government has been “a little bit careless” in opening itself to legal challenges with its legislative changes to speed up reviews of major industrial projects.

While the law has been moving toward more open regulatory processes, including full opportunity for participation for those who have an interest and expertise, the federal government seems to be pushing in the opposite direction, observed McArthur.

While a court decision on the review process will not likely stop the pipeline, there is a good chance it will conclude these people must be heard, said McArthur, who served as deputy minister in Glen Clark’s NDP B.C. government in the 1990s.

“You can’t underestimate the impact of the government doing it wrong and having to go back and redo it — the impact this could have on the overall viability of these projects. Time is money,” he said.

The National Energy Board has already extended the deadline for information requests from interveners by 10 days, but said they do not expect any delays in the process.

“We have a hearing schedule and we’ve been moving along according to that schedule,” said NEB spokeswoman Sarah Kiley.

And the federal government insists this review will be “no less rigorous” compared to past reviews.

In an email, Natural Resources Ministry spokesman Paul Duchesne said the written cross-examination format will allow the panel to hear from interveners in an efficient way.

He added that the more than 1,600 participants will ensure the review is informed by the facts. (Of those, about 1,200 are only able to submit a letter).

“We are confident in the NEB’s ability to conduct an independent, fair and open process that incorporates the views of Canadians who are directly affected or have related expertise,” Duchesne said.