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There has been a fair bit of controversy since voters in British Columbia elected a hung legislature on May 9.
But after days of negotiating behind closed doors, it now appears that by July, we will have a new BC New Democratic Party government — with support from the BC Greens, of course.
One of the issues that brought the Greens and the NDP together (a pairing whose social media nickname is GreeNDP) was their shared opposition to Kinder Morgan’s Trans Mountain expansion pipeline. It's a ghastly proposal to add 987 kilometres of pipeline to an existing pipeline system, tripling its capacity to ship up to 890,000 barrels of crude oil per day from Alberta to the B.C. coast.
The project already has approval from the federal and outgoing BC Liberal governments, so what can new provincial leadership really do to stop it so late in the game?
It turns out the province has a number of legal options to explore. None are silver bullets of course, but in combination with First Nations legal challenges, continued campaign work from advocacy groups, and frontline activists who are ready to protect our land and water, we are well on our way to stopping this pipeline.
Here are some of the legal options the B.C. government can take to block Kinder Morgan’s pipeline:
1. Meaningful consultation with First Nations
Reconciliation with Indigenous peoples is described as “a foundational piece” of the new government in the agreement that NDP and Green caucuses signed to seal their pact. How they move forward with the Trans Mountain expansion will be the first major opportunity to put that commitment into action.
The B.C. government currently faces a legal challenge from the Squamish Nation for failing to consult on the decision to issue to an environmental certificate for Kinder Morgan’s pipeline. The first step to opening meaningful consultation could be for the new government to acknowledge that extremely limited consultation conducted by the previous administration does not meet the legal standard for consultation. Instructing their legal counsel to seek a consent order would send the government and First Nations back to the consultation table.
There is precedent for this: following his election, then NDP premier Mike Harcourt instructed the province's legal team not to challenge the existence of aboriginal title, which led to the landmark Delgamuukw decision. That decision tied aboriginal rights and title to land, and the right to decide what activities take place on it.
2. A cumulative health impact assessment
Healthcare professionals, first responders, local governments, and community groups have all raised concerns about the risks posed by transporting and storing oil in major urban centres. But technical and environment conditions put in place by the NEB and federal government do not adequately address those concerns, in my view.
Whether it’s from a fire at one of Kinder Morgan’s oil storage farms, a tanker spill in Vancouver’s inner harbour, or long-term exposure to carcinogens in the oilsands crude, the health risks are serious. A new provincial government can set things straight and reassure local communities that someone is looking out for their health and safety with a proper review.
For more information on the importance of a cumulative health impact assessment for this project please see Kinder Morgan and Public Health, a report drafted for Stand.earth by a group of concerned physicians.
3. Keep pipelines out of provincial parks
The proposed Kinder Morgan’s pipeline route would cut through five provincial parks, among them Finn Creek, a Class A Provincial Park, and Lac du Bois Grasslands Protected Area, which protects one of B.C.’s rarest and most valuable ecosystems.
The outgoing B.C. government amended the boundaries of four of these parks to make way for the pipeline, but a new government could revoke that legislation through a cabinet decision, and force Kinder Morgan to come up with a new route that doesn’t go right through our parks. is it legislation or regulation? seems unlikely cabinet can revoke legislation?
4. Strengthen protection for waterways
Kinder Morgan’s proposed pipeline crosses 1,308 waterways in B.C.. How those water crossings are designed, built and operated will not only have a huge impact on the local environment, it also will have a huge impact on the cost of the project.
The B.C. government can strengthen the regulations around stream and river crossings for heavy oil pipelines through the existing Water Sustainability Act.
5. Protect our air sheds
Off-gassing at Kinder Morgan’s tank farms in Burnaby and Abbotsford has the potential to release extremely toxic pollution into the residential neighbourhoods in Forest Grove and Sumas surrounding those facilities. The diluted crude, or dilbit, that will be carried in the proposed pipeline contains highly carcinogenic chemicals like benzene, and there is no safe exposure level for these chemicals.
Using existing legislation and regulations, the province can require industrial operators like Kinder Morgan to change they way they operate their business to reduce potential air pollution.
These are not the only options open to an incoming government, but they are the least provocative and can be done without passing any new legislation. They would allow NDP leader John Horgan to deliver on his promise to use "every tool available" to fight the Kinder Morgan pipeline while focusing on areas that are clearly in the province's areas of jurisdiction.