Anti-pipeline activists may be doing handsprings over the high court ruling that quashed federal government approval of the Trans Mountain pipeline expansion project, but they may want to wait a while before popping any champagne corks.
In fact, they may never reach their ultimate goal of blocking that pipeline forever.
That is because there are only two federal political parties that have any hope of forming government in this country, and both are staunch supporters of the expansion project.
Whether it is the Liberals’ Justin Trudeau or the Conservatives’ Andrew Scheer running things, building that pipeline remains a priority for both of them. Both know that for all the theatrical protests against the project, the fact is more voters support it than oppose it, even in British Columbia.
The federal NDP is the only political party opposed to the pipeline, and it stands very little hope of forming government in Ottawa any time soon, at least before the pipeline is eventually built.
As well, a close read of the lengthy judgement by the Federal Court of Appeal shows the court actually provided a road map of sorts for the federal government to get the pipeline project back on the rails. It’s right there at the end – basically, advice on what to do next time to ensure a successful government approval that will be held up by the court.
In fact, much of the judgement is spent disposing of all kinds of arguments against the pipeline and actually sides with the federal government (through the National Energy Board) time after time. The tone is almost “you’ve done a great job, NEB, on all kinds of issues, but you fell short on just two of them.”
Of course, those two lapses – failing to consult meaningfully with First Nations and failing to include issues that arise from increased shipping tied to the project – are big ones, and will be tough to reconcile.
However, both of them can be resolved to meet the courts’ concerns, although it will clearly take some time.
The judgement showed that while the NEB set up a good consultation process, it allowed it to become simply a note-taking exercise with little two-way dialogue. Not good enough, said the court, and it called for the government to engage in “dialogue meaningfully and grapple with the real concerns of the Indigenous applicants so as to explore possible accommodation of those concerns.”
Surely, that test can be met, as it does not mean securing the support of every First Nations for the project. The government needs to simply show the court it made a genuine effort to deal with various concerns, and not simply compile a catalogue of them.
The shipping problem may be more problematic, but again it is a challenge that can likely be answered. The court is rightly concerned about any negative impact that increased tanker traffic could have on the resident orca whale population in the Salish Sea.
However, technology continues to improve dealing with the problem of noise pollution (one of the chief threats to the orcas’ well-being). As well, because the NEB did not include shipping as part of the project, it did not spend much time on the orca issue.
As chemist and blogger Blair King has pointed out, the pipeline project would add about 700 more tanker trips in an area that sees 23,000 ship movements a year (B.C. Ferries and container ships all ply those waters many more times than tankers coming out of Burrard Inlet).
In other words, tanker traffic alone is hardly the main threat to the orca population. So judging only the impact from tankers – and not the far more plentiful ferries and container ships – would seem suspect at best.
As well, in the next go-round, there will be more emphasis placed on the federal government’s ocean protection plan, which will no doubt be expanded in scope to impress the court.
Arguments like that one will no doubt be part of the NEB’s next reassessment (and approval) of the pipeline, which may placate the court.
That should comfort whoever is running the federal government by then, which is a big reason those champagne corks may ultimately never be popped by the pipeline’s opponents.
Keith Baldrey is chief political reporter for Global BC.
