The prospect of a new provincial government in B.C. has sparked fresh political debate about Kinder Morgan’s Trans Mountain pipeline, which is opposed by B.C.’s NDP and Green Party, despite already receiving provincial and federal approval.

“There are no tools available for a province to overturn or otherwise block a federal government decision,” stated Alberta Premier Rachel Notley this week.

But is that really the case?

The short answer is no.

“There’s no question that B.C. has tools in its toolbox, which it has not yet used and that it should use,” says Jessica Clogg, executive director and senior counsel at West Coast Environmental Law.

That very prospect has drawn incendiary commentary, including claims by the Canada West Foundation that a reversal of the approval “strikes at our very democracy.”

On the contrary, B.C. Green Party Leader Andrew Weaver argued in the Globe and Mail that reconsidering Trans Mountain, which would increase the number of oil tankers plying B.C.’s waters seven-fold, would be a “triumph of democracy.”

“If we care about the integrity of democracy, we are honour-bound to reconsider the Trans Mountain decision,” he wrote. “Federalism doesn’t mean that one province gets to tread on the rights and threaten the environment of another.”

Indeed, many of the seats the B.C. Liberals lost were in Lower Mainland ridings, such as Burnaby, that would be most affected by the new pipeline.

Industry analysts are already sounding the alarm before Kinder Morgan’s proposed $1.3 billion IPO for its Canadian unit.

“The really close B.C. election vote puts pressure on the Kinder Morgan IPO,” Colin Cieszynski, chief market strategist at CMC Markets, told Reuters. “You run the danger of the whole thing getting stalled for years or going into limbo.”

With that in mind, here are three ways a new B.C. government could stop — or at least delay — the Trans Mountain pipeline.

1) B.C. Government Could Order Its Own Environmental Assessment

Revisiting a provincial environmental assessment is one of the most obvious means by which the B.C. government could “overturn or otherwise block” the construction of the Trans Mountain Pipeline, says Chris Tollefson, executive director for the Pacific Centre for Environmental Law and Litigation.

“I think that avenue is quite plausible given the fact that process wasn’t robust and raised serious questions — and continues to raise serious questions — about consultation with First Nations,” he says.

A January 2016 verdict by the B.C. Supreme Court in favour of Coastal First Nations (CFN) and Gitga’at First Nation stated that the province has to make a clear decision about its environmental assessment process (rather than simply continue to accept the federal assessment as its own through an “equivalency agreement” with the National Energy Board).

That presented a chance for B.C. to do its own environmental assessment to fill the holes of the National Energy Board review — holes the B.C. government itself had pointed out.

But instead of doing that, B.C. quietly confirmed in March 2016 that it had accepted the heavily criticized National Energy Board report as its own.

A new government could examine what the province’s Environmental Assessment Office (EAO) decided, conclude that it wasn’t adequate and order a proper environmental assessment.

Tollefson says it would be “perfectly within the rights of British Columbia to do that” given the well-documented flaws in the National Energy Board review of the Kinder Morgan project, which restricted public participation, ignored impacts on marine mammals and ecosystems, excluded cross-examination of evidence and failed to assess potential upstream emissions.

Some would make arguments that a government can’t change its mind after the fact, he says. But Tollefson suggests that governments change their mind all the time, and it’s a “function of democratic politics: that you elect government that make course corrections.”

“If the previous government — and in this case, the EAO — made a poor decision, British Columbia should be allowed to fix it,” he says. “That doesn’t mean that B.C. can kill the project, or delay it indefinitely. It just means that British Columbia finally will take a proper look at and make a proper assessment of this project.”

2) New Legislation

Another option for a new B.C. government would be to introduce a piece of legislation that directly pertains to the pipeline. For example, Clogg suggests an act that orders a health and safety assessment for the project, or requires the conducting of further studies.

This would lead to better information and a broader understanding of the risks of the project, as well as help to ensure that indigenous peoples are fully included in the process.

Clogg says such a process could technically result in the federal government choosing to challenge it under constitutional law, potentially going all the way up to the Supreme Court of Canada and delaying the process for many more years.

But she suggests it would be “extremely politically risky” for the federal government.

“Just because you could legally challenge a B.C. ‘no’ and after years and years in court you might win, think about the political risks in them doing that,” she says.

“B.C. definitely has the ability to act to protect things that are within its constitutional jurisdiction, it has independent obligation to do right by indigenous peoples — and many of them are very opposed to the project — and it would be nothing but a good thing to do that work, to enable it legislatively, and see where the cards fall,” she said.

“I wouldn’t want to be the federal government who made that choice to try stand down British Columbians.”

3) Wait for Legal Challenges to Play Out

Tollefson adds that there are a series of legal challenges pending that are brought by indigenous nations, conservation organizations and municipalities. Those will take time to be dealt with by the courts, he says.

“I don’t anticipate this project will be able to move forward until those challenges are dealt with,” he says.

The Alberta government was granted intervener status in the upcoming judicial review about the Trans Mountain pipeline, which is anticipated to take place in the fall.

Only time will tell what happens on that front.

But both Clogg and Tollefson emphasize the same thing: so long as it’s under the rule of law, the next B.C. government will have a wide range of options available to it to ensure the Trans Mountain Pipeline benefits its citizenry.

“Their main regulatory obligation in relation to this project relate to the environmental assessment that they should have done and never did, and their duty to ensure that projects such as this do not proceed until they’ve fully discharged their duty to consult First Nations,” Tollefson concludes.

“I think on both of those fronts, a new government may well conclude that there’s more work to do.”

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There just aren’t enough lawyers in B.C. to fight all the environmental battles First Nations, individuals and groups face on a regular basis in the province, according to University of Victoria lawyer Chris Tollefson.

As a solution, Tollefson, the founder of the University of Victoria’s Environmental Law Centre, and a handful of legal experts and litigators recently launched a new public interest environmental law outfit that will take on some of the most powerful forces in B.C., from Malaysian-owned Petronas to government ministries to BC Hydro.

The new legal non-profit, the Pacific Centre for Environmental Law and Litigation (CELL), will focus on environmental litigation, legislative reform and, as Tollefson describes it, “training up the next generation of young public interest environmental lawyers.”

Tollefson, who served as a former president of Ecojustice, one of Canada's most prominent environmental legal non-profits, said there is more work than existing organizations can handle.

That sentiment is echoed by Bob Peart, executive director of Sierra Club BC, and one of the centre's first clients. 

"I think litigation is vital and it's so hard to move this government in any other way," Peart told DeSmog Canada. "You can build up the wall of public noise as much as you like but litigation seems to be a lever they at least half listen to."

Illegal Site C Permits at Centre of First Case

The organization launched with a case aimed at the B.C. Ministry of Forests, Lands and Natural Resource Operations for allegedly issuing illegal permits to expedite BC Hydro’s Site C construction work, as DeSmog Canada first reported.

The Centre filed for a judicial review of those permits last week in the B.C. Supreme Court on behalf of the Sierra Club BC and citizen Josette Weir.

Peart said the issue of the illegal permits reminds him of other stories of government corruption.

"The first reaction I had was thinking of the triple delete e-mails," he said. "What's the difference between 'you erase those e-mails' and someone saying 'please, wink, wink, nudge, nudge, can you approve this?' "

Peart said there is a long-standing tradition of using litigation to advance environmental issues and to hold government to account, but the need for that strategy is increasing over time.

Violating permitting rules or skirting proper consultation with First Nations seems to part of the due process with the current government, he said, adding they have come to expect litigation..

"It's a spin of the dice, risk analysis on their part."

Tollefson said the illegal Site C permits are a reminder of the importance of challenging government activity in the courts and holding government to account.

“That is exactly the kind of case CELL was created to take on,” Tollefson said. “This is the kind of situation that desperately needs to be brought to the courts for adjudication.”

“The evidence here suggests that a government official not only didn’t follow the rule of law but was actively assisting BC Hydro in breaking the law. If that’s true that should concern all British Columbians regardless of how they feel about Site C."

New Public Interest Law Office to Fight BC’s Biggest Enviro Battles https://t.co/VjwsCm1GjN @pcell_law #bcpoli pic.twitter.com/lN5NWeG5Ve

— DeSmog Canada (@DeSmogCanada) July 29, 2016

Training Next Generation of Public Interest Environmental Litigators

Tollefson said the new organization will also focus on inspiring and training the next generation of B.C.’s environmental lawyers.

“We believe very much that the best way and maybe the only way to train young lawyers to be litigators is to bring them into ongoing cases, to make them part of a team that is working on a piece of litigation together.”

The centre will work closely with the University of Victoria’s Environmental Law Centre where Tollefson and law students have taken up cases aimed at the Northern Gateway pipeline review process or an expanded aluminum smelter in Kitimat, B.C.

Anthony Ho, a recent graduate of the University of Victoria’s law program, said he is excited to join the centre and continue on with some of the important litigation work he experienced through the Environmental Law Centre.

“There’s no end to the important public interest cases that could be brought all across Canada, but especially in B.C.,” Ho said.

Major pipeline proposals, energy projects like Site C, fracking and other energy development in the province have generated a significant level of public awareness around the need to balance economic development with environmental protection, Ho said.

“I do believe that British Columbians are becoming more and more aware of their environmental rights and more and more supportive of the idea that those rights need to be protected and if necessary vindicated through the justice system.”

Ho said the practice of public interest environmental law means ensuring citizens are able to bring cases forward that protect their environmental rights and bolster their access to justice, despite a lack of capacity or resources.

“If there aren’t lawyers out there or environmental law organizations out there who are able to take on those cases on a pro bono basis and represent those citizens and citizen groups in bringing forward these pieces of litigation then as a society we lose the chance to ensure that environmental justice is done.”

Once in a Generation Opportunity to Fix Broken System

Tollefson said a major focus for the centre will be on legal reform, especially when it comes to the review of major development projects.

The Trudeau government campaigned on a promised to make Canada’s pipeline review process more robust but has so far failed to deliver on that promise for major pipeline projects under review like the Kinder Morgan Trans Mountain and TransCanada Energy East pipelines.

The government has also promised to review major pieces of legislation like the Canadian Environmental Assessment Act that determines, in large part, how major developments like the Pacific Northwest LNG export facility are characterized during the review process.

But Tollefson said he sees a major opportunity for change.

“I think we potentially have a once in a generation opportunity here to fix a host of problems with how we do environmental assessments and how we approve major energy projects.”

“It’s a daunting task but … it’s absolutely critical that we weigh in and try to steer the federal government towards a successful completion of this project that they’ve taken on.”

Tollefson said he thinks an important part of that overhaul resides in ensuring the courts are given a mandate to supervise the work of tribunals and the work of bureaucrats in a more rigorous way.

“We believe the courts have taken a too deferential approach to reviewing the work of bodies like the National Energy Board and bureaucrats,” he said.

A new model would increase the ability of the courts to take a more hands on role in assessing if decisions, on pipelines or other major energy projects, measure up to the rule of law and procedure, he said.

“That’s something we’ll be urging the government to include in this new review.”

Image: Screenshot from Pacific Centre for Environmental Law and Litigation. Salmon image: Ian McAllister

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The B.C. government is being taken to court for giving BC Hydro permission to move amphibian species along the banks of the Peace River during construction of the Site C dam.

The legal challenge, recently filed by Josette Weir and Sierra Club BC, asks for a judicial review of the government’s actions in June when a regional manager with the Ministry of Forests, Lands and Natural Resource Operations (FLNRO) granted BC Hydro permission to perform amphibian salvage without proper permits issued in accordance with the Wildlife Act.

The emergency permits, first revealed by DeSmog Canada, raise questions about the relationship between government ministries and BC Hydro, which is under pressure to keep to Premier Christy Clark's word to get the dam "past the point of no return" before the May 2017 provincial election.

“There is a lot of pressure to get this project built amid controversy,” Weir, who lives in Smithers, B.C., told DeSmog Canada. “But it’s very important that the people who are in charge apply the law.”

Documents released to DeSmog Canada, including a request from BC Hydro for last-minute permits and several e-mails between a FLNRO official and local First Nations, show ministry bureaucrat, Chris Addison, issued permission for emergency amphibian salvage without due process.

In the e-mail exchange Addison suggested he had the legal authority to do so although Jocelyn Stacey, assistant professor at the UBC Allard School of Law and expert in environmental and administrative law, told DeSmog Canada Addison violated the law when he granted BC Hydro exemption from the permitting process.

“The Wildlife Act and its regulations do not allow for exemptions from the ordinary permitting process,” Stacey said. “This means that FLNRO acted without legal authority when it issued the exemption to BC Hydro.”

Weir said she was deeply troubled by this apparently blatant circumvention of the law.

“What is shocking is that [Addison] did it knowingly,” she said. “One can only wonder about the political hierarchy that is overseeing his ability to issue exemptions or not.”

“There must be a lot of political pressure and we as members of the public must be vigilant.”

Weir and the Sierra Club BC brought the case to the provincial Supreme Court through the Pacific Centre for Environmental Law and Litigation (CELL).

“I’m very thankful for that newly formed group,” Weir said. “It’s going to be their first case and I’m so grateful the lawyers would look into this. Otherwise it would have just fallen under the radar.”

B.C. Faces Lawsuit Over Rushed #SiteC Permits https://t.co/BVRP7zl45g @StopSiteC #bcpoli #cdnpoli pic.twitter.com/84CIYFYRhZ

— DeSmog Canada (@DeSmogCanada) July 29, 2016

Chris Tollefson, co-founder of the centre and experienced environmental litigator, said this issue is troubling from a rule of law perspective.

“This is the kind of situation that desperately needs to be brought to the courts for adjudication,” Tollefson said. “The evidence here suggests that a government official not only didn’t follow the rule of law but was actively assisting BC Hydro in breaking the law. If that’s true, that should concern all British Columbians regardless of how they feel about Site C."

Bob Peart, executive director of Sierra Club BC, said he sees the issuing of illegal permits as part of a larger government status quo, where environmental and First Nations rights are violated with impunity. 

The responsibility is left with individuals, First Nations or environmental organizations to bring legal challenges to the courts, Peart said, which is time-consuming and expensive.

"Industry and government have much thicker wallets than we have and to do these cases ourselves — we just don’t have that kind of funding, nor do First Nations," he said, adding the government appears to bet on the fact no one will challenge them when they misstep.

"It's a spin of the dice, risk analysis on their part," he said. "It's a part of the pattern of this government."

David Conway, BC Hydro’s community relations manager for the Site C project, did not respond to DeSmog Canada’s request for comment.

The Ministry of Forests, Lands and Natural Resource Operations told CTV they were acting in the public interest.

"Given the extenuating circumstances, the regional manager…decided to communicate his comfort with the amphibian removal proceeding on a limited scope and in advance of a broader permit which has now been issued," the statement read. "The alternative would be to allow the amphibians to die."

In 2011, Weir won a legal challenge that forced Health Canada to review the impacts of Monsanto’s herbicide Roundup on amphibian species.

“It opened me up to amphibians. I have no claim that I have a special relationship with amphibians aside from being French,” she said with a laugh.

“But I do understand that they are a part of the natural web that we are eroding all the time. As members of the public we should be extremely vigilant about the health of the planet.”

Weir added Site C is a unique issue because of the political pressure to complete the project.

“There is this sense in the north that no one is looking,” Weir said. “That’s why it’s very important to follow the rules. That’s why we have laws and regulations.”

Image: Site C construction along the banks of the Peace River. Photo: Jayce Hawkins

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