Kinder Morgan pipeline requires separate B.C. environmental certificate

Kinder Morgan’s $5.4-billion Trans Mountain pipeline expansion has another hurdle to overcome.

It now must undergo a provincial review, the B.C. Environmental Assessment Office ordered this month.

The call for a provincial assessment comes as a result of a B.C. Supreme Court ruling in January that found the province could not rely on an equivalency agreement signed between the federal government and the B.C. government that allowed a National Energy Board (NEB) review of the project to substitute for the provincial assessment.

The province decided not to appeal the decision.

The case had been brought by the Coastal First Nations and the Gitga’at First Nation against the B.C. government over Enbridge’s $7.9-billion Northern Gateway project. The First Nations challenged the validity of the equivalency agreement and also claimed the province had failed to adequately consult them before entering the agreement.

A similar equivalency agreement was signed for Kinder Morgan’s Trans Mountain pipeline project.

The project to tap into new Asian markets will triple capacity and increase the number of tankers calling at its Burnaby terminal nearly sevenfold, to 400 a year. 

In a letter to Kinder Morgan, B.C. Environmental Assessment Office associate deputy minister Kevin Jardine said the province will still accept the NEB’s review as the province’s assessment report.

A decision on the Trans Mountain project from the NEB is expected by May 20.

But Jardine told Kinder Morgan that the Environmental Assessment Office will have to consult with First Nations to determine how the project will affect them on their aboriginal rights and whether any additional accommodation may be required.

It will also review and evaluate the consultation to date.

It’s unclear exactly what the provincial consultation requirement will mean — or whether it will delay the project — as normally First Nation involvement in provincial reviews is comprehensive and includes defining the issues to be reviewed.

While some First Nations, particularly in the Interior, have offered support for the Trans Mountain expansion, some southern coastal First Nations, including the Tsleil-Waututh, are opposed to the project.

There is no timeline on considering the NEB report, consultations with First Nations and consideration of any additional information, B.C. Ministry of Environment spokesman David Karn said in an email. “The timing of next steps are dependent on the proponent’s readiness to proceed,” he said.

In a written response to The Vancouver Sun, Kinder Morgan did not answer whether it believes the provincial review will cause a delay in the project or increase costs.

Kinder Morgan spokeswoman Ali Hounsell said the order for the provincial review was expected as a result of the court ruling.

“It presents an opportunity for Trans Mountain to ensure the proposed project is meeting the province’s environmental requirements while addressing concerns of First Nation communities,” Hounsell said in an email.  “We look forward to working co-operatively with the EAO through this review process and we are confident that our ongoing consultation will earn the required Environmental Assessment Certificate.“

Robin Junger, a lawyer with McMillan LLP in Vancouver who specializes in aboriginal and environmental law, said the federal review process is likely to be relied on, but there is now a host of questions about how exactly does the province consult with First Nations, considering the federal review is nearly complete.

It’s not simply a question of asking First Nations to comment on a report, said Junger, a former head of the EAO in B.C.

“First Nations are consulted all the way through, from the decision on whether to do anything, in the procedural orders, into the determination of what information is required, and they are part of a working group,” noted Junger.

Above photo: Patricia Kelly, of the Sto:lo First Nation, chants and beats a drum during a protest outside National Energy Board hearings on the proposed Trans Mountain pipeline expansion in Burnaby in January. DARRYL DYCK / THE CANADIAN PRESS