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B.C. Joins Court Fight as Kinder Morgan Clears Final Conditions for Burnaby Terminal Construction

A Federal Court of Appeal judge has given British Columbia’s new provincial government permission to join the court fight against Kinder Morgan’s Trans Mountain pipeline expansion, though Justice David Stratas didn’t sound terribly pleased with the outcome in his reasons for decision.

The decision came just two days before the National Energy Board announced that Trans Mountain had met all regulatory conditions for expanding its Westridge Marine Terminal in Burnaby, B.C.

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Although this motion is a close call, this Court has decided to allow British Columbia to intervene,” Stratas wrote in his decision Tuesday. “Two provinces are most directly affected by these proceedings, Alberta and British Columbia. The public interest of Alberta has been given a voice in these proceedings. The public interest of British Columbia deserves a voice, too.

And since B.C. “did participate in the administrative proceedings before the National Energy Board,” the province “should be free to advance a position in the judicial review of those administrative proceedings.

However, the judge took B.C. to task for what he saw as its “blasé” approach to its request for standing, noting that the new government took five weeks to file a seven-paragraph affidavit that “does not offer a single word of explanation” for the delay, CBC reports.

He described the request as vague and imprecise, and questioned whether B.C. understands the ground rules of the “complex proceeding it is seeking to enter”.

While B.C. has a green light to participate in the case, Stratas placed several conditions on the intervention: the province’s written submission can’t exceed 15 pages, the length of Alberta’s, and it’s due today. “Mindful of the public importance of the hearing in this matter proceeding as scheduled, almost all of the existing parties—both applicants and respondents—insist that this filing date be maintained,” he wrote. “I agree.

Trans Mountain and the federal government will both be entitled to respond to the B.C. submission; their due date is next Friday, September 8. And when the hearing takes place, B.C. will have no right as an intervener to introduce new issues or claim any relief that a full party to the claim isn’t already requesting.

In this Court, interveners are guests at a table already set with the food already out on the table. Interveners can comment from their perspective on what they see, smell, and taste. They cannot otherwise add food to the table in any way,” Stratas wrote. “To allow them to do more is to alter the proceedings that those directly affected—the applicants and the respondents—have cast and litigated under for months, with every potential for procedural and substantive unfairness.