A Tale Between Two Cities: Part I
A brief history of the pipeline
The Trans Mountain Expansion Project (TMX) has been in the works for a while. It comes and goes in the mainstream media with the ebb and flow of public interest. Yet there are so many captivating — and perhaps nefarious — aspects to TMX that should have us all intrigued, all the time. This is the first part of a series where each piece will explore the various issues raised by the technical and legal aspects of TMX. This is not an attempt to persuade you of my personal opinion, but rather to introduce a critical dialogue that will impact us as Canadians for a long time to come.
The theme throughout all stages of the tribunal, court and cabinet approval processes is the repeated affirmation that the construction and function of the pipeline is in “the public interest.” Something that so affects the public, currently and generationally, ought to, in my view, be weighed out in the court of public opinion. So, here we are — after all, we are the public. I want you to decide what’s in the public interest. At this point, I don’t know if the law can be very helpful, but I’ll let you be the judge.
The story of TMX begins in 2013 with a proposal to build a structure twinning the existing pipeline between Edmonton and Burnaby. Those are our cities. Here is the tale.
As is typical for a major resource project, the owner of the project (at the time, Kinder Morgan) makes an initial application to the National Energy Board (NEB). In 2016, the NEB concludes that TMX is in the public interest and recommends its approval. So, in 2016, Canada approves it for the first time (spoiler alert). Indigenous communities, municipalities, and environmental groups launch lawsuits. Some staunch opposers of the pipeline try to protest at construction sites and are slapped with injunctions.
A major plot twist happens in May 2018 when Canada announces its intent to purchase the pipeline. Okay, so no one really saw that coming, but opposition dusted themselves off and continued the fight up through the court system. Then in August 2018, a unanimous Federal Court of Appeal — in a watershed moment — quashes Canada’s approval, citing constitutionally inadequate consultation processes with Indigenous peoples and a failure to consider all the relevant issues — including project-related marine shipping. In the first go around, Canada et al. tried to argue that the increase in marine shipping from the project was not related to the project. Confusing. The Court was clever enough to realize that such an omission from the definition of what fell within the ambit of TMX was an “unjustifiable” error resulting a flawed report. Since the whole point of the pipeline is to ship the oil, the Court found shipping was indeed related. Quash.
The matter is sent back. Take 2, the NEB and Canada try again. Canada hires former Supreme Court of Canada Justice Frank Iacobucci to oversee the Indigenous consultation process. There are more hearings, roundtables, logs of email correspondence, and the occasional Cabinet Minister trekking out to view a sacred site. And after all that — or just that, as some would argue — in February 2019, the NEB releases a new report on TMX with the old conclusion: the expanded pipeline was in the public interest and Canada should approve it. In a beautiful twist of timing and irony, exactly one day prior to the foreseeable approval, June 17, 2019, Parliament passes a motion to officially declare a national climate emergency and restates its commitment to meeting its emissions target under the Paris Agreement.
The next day, Canada approves it. That was exactly one year ago today.
As a brief aside, if you’re also confused that I keep saying “Canada” in relation to all these different job titles, join the club. Sometimes Cabinet, sometimes a federal Crown corporation, sometimes the teams sent to consult with Indigenous communities — it is Canada wearing all these hats. Consulter, approver, builder, owner; judge, jury, executioner.
Indigenous communities, municipalities, and environmental groups (some of the same, some fresh legs), roll up their legal-action sleeves and head straight back to work on appeal number two. The Attorney General of Alberta tries to oppose all the applications granting leave (applications for leave means the pre-case — i.e. convincing the court that your case is worth hearing). To some degree, Alberta succeeds as the Court holds that many issues do not meet the “fairly arguable” threshold.
On appeal to the Federal Court of Appeal, the Court dismisses outright half of the applications, including all the environmental groups, various Indigenous nations, the City of Vancouver, and a handful of teenage advocates (valiant efforts but the unvalued opinion of the next generation). It is not possible to appeal a denial of an application for leave to appeal. That’s the end of the road. Full stop. Three applicants — Tsleil-Waututh Nation, Coldwater Indian Band, and the Squamish Nation — are allowed to continue.
It’s February 2020. We’re at the Federal Court of Appeal (again). This time, there is no watershed moment. There is no indictment on the charges brought against Canada. Instead, this time, there are allegations by the Court against the Indigenous nations of posturing and unnecessary time delay. The argument that Canada’s multitudinous roles in the process causes inherent bias is swiftly dismissed. Again, the Court reminds us, it’s in the public interest.
Now, in June 2020, we wait to see if the Supreme Court of Canada — our highest and final court — extends the scepter and hears the appeal.
Excuse the foregone conclusion by Mr. Trudeau, the matter is still up for debate — well, at the very least in the discussion chambers of our highest court.
The story about the pipeline is a divisive one, and one where good people fall on both sides. As I’ll canvas in the following pieces, there is no doubt that TMX would be extremely beneficial to the Canadian economy, but we have to weigh the significant ecological and cultural (not to mention reconciliatory) ramifications.
Those pulling the pipeline strings are telling us that this is in the public interest. Remember, we are the public. Is this in our interest? Or perhaps more importantly, is this an accurate reflection of who we are and who we want to be?
