Share this!

Phil Lane Jr., a hereditary chief and member of the Ihanktonwan Dakota and Chickasaw Nations, and Musqueam Elder Shane Pointe dance at a Kinder Morgan protest this month. The Federal Court of Appeal ruling Thursday that overturned the federal government’s approval of the Kinder Morgan pipeline expansion dealt a major blow to the project, which is now owned by the Canadian government.

The full 254-page judgment is available here .

The Tyee has excerpted key sections below.

On the failure to review the impact of tanker traffic on killer whales

[454] By defining the Project not to include Project-related marine shipping, the Board failed to consider its obligations under the Species at Risk Act when it considered the Project’s impact on the Southern resident killer whale. Had it done so, in light of its recommendation that the Project be approved, subsection 79(2) of the Species at Risk Act required the Board to ensure, if the Project was carried out, that “measures are taken to avoid or lessen” the Project’s effects on the Southern resident killer whale and to monitor those measures.

[455] While I recognize the Board could not regulate shipping, it was nonetheless obliged to consider the consequences at law of its inability to “ensure” that measures were taken to ameliorate the Project’s impact on the Southern resident killer whale. However, the Board gave no consideration in its report to the fact that it recommended approval of the Project without any measures being imposed to avoid or lessen the Project’s significant adverse effects upon the Southern resident killer whale.

[456] Because marine shipping was beyond the Board’s regulatory authority, it assessed the effects of marine shipping in the absence of mitigation measures and did not recommend any specific mitigation measures. Instead it encouraged other regulatory authorities “to explore any such initiatives” (report, page 349). While the Board lacked authority to regulate marine shipping, the final decision-maker was not so limited. In my view, in order to substantially comply with section 79 of the Species at Risk Act the Governor in Council [cabinet] required the Board’s exposition of all technically and economically feasible measures that are available to avoid or lessen the Project’s effects on the Southern resident killer whale. Armed with this information the Governor in Council would be in a position to see that, if approved, the Project was not approved until all technically and economically feasible mitigation measures within the authority of the federal government were in place. Without this information the Governor in Council lacked the necessary information to make the decision required of it.

[465] Trans Mountain’s application was complex, raising challenging issues on matters as diverse as Indigenous rights and concerns, pipeline integrity, the fate and behaviours of spilled hydrocarbons in aquatic environments, emergency prevention, preparedness and response, the need for the Project and its economic feasibility and the effects of Project-related shipping activities.

[466] The approval process was long and demanding for all participants; after the hearing the Board was left to review tens of thousands of pages of evidence.

[467] Many aspects of the Board’s report are not challenged in this proceeding.

[468] This said, I have found that the Board erred by unjustifiably excluding Project-related marine shipping from the Project’s definition. While the Board’s assessment of Project-related shipping was adequate for the purpose of informing the Governor in Council about the effects of such shipping on the Southern resident killer whale, the Board’s report was also sufficient to put the Governor in Council on notice that the Board had unjustifiably excluded Project-related shipping from the Project’s definition.

[469] It was this exclusion that permitted the Board to conclude that […]

(Visited 6 times, 1 visits today)

Share this!