Canada’s National Energy Board opened hearings this week in Vancouver on whether to extend more special consideration to American-owned Kinder Morgan Canada in its efforts to expand its existing Trans Mountain Pipeline from Alberta’s tar sands/oil sands to a shipping terminal in neighbouring Burnaby, B.C.
Although Ottawa gave the company’s proposal to replace the existing 1,147-kilometre pipeline a general approval in late 2016, the replacement route does not always follow the original, so its exact placement now requires supplemental approvals. Some of those are subject to municipal constitutional authority.
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The American company has repeatedly challenged that authority before the Canadian regulator, with some success. As the National Observer notes, the Board has already “agreed to some of Kinder Morgan’s requests, including the introduction of a new process to fast-track the review of company complaints about delayed permit approvals, and resolve them within three to five weeks.”
Last month, the quasi-judicial Board also allowed the American company to override local environmental bylaws in Burnaby. Its written reasoning for that decision, released last week, blamed the city for slow-walking Kinder Morgan’s permit applications.
The decision riled more than simply Burnaby—which disputes the allegations of delay.
“I’m angry on behalf of British Columbians,” B.C. Environment Minister George Heyman told the Observer. “This is another example of the National Energy Board essentially finding a way to overrule British Columbia’s jurisdiction and assist Kinder Morgan in short-circuiting our legitimate permitting.”
“Kinder Morgan could advance no evidence whatsoever that we have been unreasonable in our processes or in handling their permits,” Heyman added. If Kinder Morgan’s aggressive schedule has fallen behind, the minister added, the company “should look in the mirror for failing to get their information in, in a timely and complete manner.”
Heyman said the province may appeal the Board’s bylaw decision to the Federal Court.
Among other concessions the company is demanding in the renewed hearings, the Observer reports, is that it be allowed a presumptive “right of entry” to install its pipeline on private property, leaving owners to argue later about the compensation they are owed for the intrusion.
“If we get objections to the route, we get a right of entry first,” KM Canada President Steve Kean told investors in a conference call January 17. “Then the question becomes what’s the level of compensation involved? But first, we need to have the right of entry.”
For its part, Burnaby had three days of testimony planned to “demonstrate the ‘significant and unacceptable’ financial, environmental, and social risks of the company’s proposed route through the city.”
Meanwhile, the NEB wasn’t alone in catching fire for its performance on Kinder Morgan. According to another Observer report, Natural Resources Minister Jim Carr knew, before the federal cabinet signed off on its Trans Mountain approval, that constitutionally-mandated consultations with First Nations along the pipeline’s route had been done in a “paternalistic” and “inadequate” manner.
Carr’s staff “prepared at least four memos for Carr based on feedback from dozens of Indigenous communities,” the paper notes. “The memos warned the minister that the communities felt the government had failed to address how the project would affect their rights.”
The memos bolster the case being made by half a dozen B.C. First Nations—joined by the province and the city of Burnaby, among others—against Canada and the pipeline company in federal court. They claim the Board failed to give Indigenous rights and regional concerns adequate consideration in its 2016 decision.
