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I am so glad I went to law school. I love the law. Unlike politics, law is a North Star.
From October 2-13, 2017, the Federal Court of Appeal in Vancouver will hear from multiple appellants who argue the permits to allow Kinder Morgan to build its pipeline from the oilsands of Alberta to Burnaby BC must be quashed for errors of law. If the permits are quashed, BC can exercise its constitutional right to hold a provincial review – one skipped by Christy Clark. Fifteen cases are being consolidated for the marathon hearing. These are not legal challenges of the quixotic variety. They are solid.
First, a quick look at the respondent. Few Canadians know that Kinder Morgan is an Enron offspring. Yes, the pipeline was originally built in the early 1950’s to take crude from Alberta to the four refineries in Burnaby, creating good Canadian jobs and supplying the Canadian market with gas, diesel and propane. The first pipeline was set in motion with a 1951 Act of Parliament creating the company, a partnership of Bechtel and Standard Oil.
Kinder Morgan is a Houston-based company founded in 1997. Its founder, Richard Kinder, had been in Enron senior management. If not for his great good fortune in Ken Lay sidelining him as Enron CEO in favour of Richard Skillings, it would have been Kinder who went to jail for Enron’s fraudulent conduct instead of Skillings. Kinder took Enron Liquid Pipelines, renamed it Kinder Morgan and started buying up pipeline and tanker companies. The Trans Mountain pipeline was among his acquisitions.
I do not have space in this brief article to catalogue Kinder Morgan’s environmental and safety violations in the US and Canada, but I do urge you to google them. This Houston-based Son of Enron has been trumpeting the safety record of a pipeline under different management from 1953. Meanwhile, Kinder Morgan has shifted from delivering crude to refineries to raw (solid) bitumen, diluted with a toxic brew of solvents, for export. The result is that the last refinery in Burnaby has reduced its production and workforce by one–third as Kinder Morgan no longer delivers sufficient quantities of a product Chevron can refine.
Kinder Morgan’s latest disrespect for Canada is summed up in its illegal actions to prevent wild salmon from entering streams in order to build the expanded pipeline. The National Energy Board has ordered Kinder Morgan to stop as it has not yet fulfilled the NEB’s conditions. It may well be sufficient grounds for British Columbia Environment Minister George Heyman to act under section 37 of the BC Environmental Assessment Act to cancel the BC permit issued under the former Clark administration.
Now, to the appellants. There are fifteen separate legal challenges to the issuing of the federal permit. These cases fall into three distinct legal categories of substantial argument: First Nations challenges, environmental groups relying on endangered species laws, and municipal governments challenging the abuse of process, lack of procedural fairness and unjustified NEB decisions to ignore key evidence. There is some overlap as both First Nations and Vancouver and Burnaby maintain that it was wrong in law to fail to evaluate the shipment of diluted bitumen by tanker under the federal environmental assessment act. Burnaby has strong arguments that the safety concerns, as expressed by its fire department, about the risk to thousands of residents of a tank farm fire were ignored.
I do wish there had been a 16th appellant. One intervenor, UNIFOR, the largest union representing oilsands workers, was denied the right to present evidence that the pipeline would result in lost Canadian jobs. The NEB ruled that jobs and the economy were outside its mandate. It continues to boggle the mind that Alberta and federal politicians continue to stand up, and with a straight face, claim the pipeline will be good for Canada’s economy. No regulatory process or independent review has ever established that.
Both the Alberta and British Columbia governments are intervening. Our interests as British Columbians will be put forward by an icon of environmental and Indigenous law – Justice Thomas Berger. Thank you Attorney General David Eby.
When I used to appear as a lawyer in the pre-Harper NEB, it was not a gong show. Thanks to Harper, the NEB was given responsibility for pipeline environmental assessments. That mistake must be reversed by the Trudeau administration, but it appears the expert advice from two panels on the NEB and Environmental Assessment is about to be ignored by Environment Minister Catherine McKenna.
As an intervenor in the NEB hearings, I can attest that fraudulent evidence was accepted by the NEB (Kinder Morgan whited out the word “Draft” on what it claimed was US Environmental Protection Agency modeling), that Kinder Morgan used an amateur-hour, unpublished, two-week experiment conducted in Alberta, as its only evidence that diluted bitumen can be cleaned up in a marine environment. Far more evidence, published by real scientists, says it cannot, but the NEB ruled that evidence could not be submitted as it came too late in the hearings to be fair to Kinder Morgan. I am enormously proud of my colleagues, Green Party BC MLAs Andrew Weaver and Adam Olsen. We were the only representatives of any political party to appear in final argument against Kinder Morgan.
"Let's hope the Federal Court of Appeal can give British Columbians - Indigenous and non-Indigenous - justice."