When planning work started on the Trans Mountain oil pipeline expansion, some readers of this sentence were not yet old enough to vote. A few of you hadn’t been born.
Almost two decades later, construction is finally under way. Nearly 5,000 workers are on the job and new oil is scheduled to flow by late 2022. The final main legal challenge was concluded last week, when the Supreme Court of Canada declined to hear an appeal of the project’s approval.
The original Trans Mountain pipeline, built in the early 1950s, was given the green light after just three days of private hearings. The new pipeline, which will roughly triple existing capacity to 890,000 barrels a day, took a bit longer.
Blame for this glacial pace is partly owing to an extended regulatory process, but the corporate side also at times dragged its feet. Plans were on the drawing board in the early 2000s, but a regulatory filing only landed in late 2013. The project was approved by Ottawa in 2016; in 2018, the courts ruled that was premature. The issue of Indigenous consultations was central. So Ottawa did more work, following the court’s detailed instructions. Cabinet reapproved the pipeline in 2019.
The key court decision came this February, when the Federal Court of Appeal upheld that second approval, saying the added round of Indigenous consultations met the Crown’s legal obligations. Last week, the Supreme Court declined to revisit that judgement.
Yes, Canada’s regulatory process often takes too long to make decisions. There is, however, some good news in the Trans Mountain saga. A stronger foundation for future projects is in place. Considerable legal clarity has been achieved, thanks to the Federal Court quashing cabinet’s first approval in 2018, but at the same time giving Ottawa an instruction manual on how to redo its work and meet its legal obligations the second time around.
Two important principles are evermore firmly established in law: that the Crown has an extensive duty to deeply consult affected Indigenous groups, and that this duty is not unlimited. “While the parties challenging cabinet’s decision are fully entitled to oppose the project,” the Federal Court said in February, ”reconciliation and the duty to consult do not provide them with a veto over projects such as this one.”
Those are the ground rules for developing large industrial projects in 21st-century Canada. There must be no going back to that three-day approval in the 1950s, when Indigenous people and the environment were not even an afterthought. Alongside the court rulings, Ottawa’s new Impact Assessment Act, which outlines requirements for early and in-depth Indigenous consultations, should help future projects avoid extended battles in court.
Prime Minister Justin Trudeau’s government staked a controversial middle ground on Trans Mountain. It is pursuing a climate change agenda, but rejected the idea of blocking this pipeline – instead, Ottawa bought it to ensure it gets built.
That was the right approach, for both the environment and the economy, yet the Liberals have taken fire from all sides. The commitment to the pipeline will pay off. When new oil flows, Canada should be able to get a better price for its usually discounted oil, as dependence on a single customer, the United States, is lessened.
The cost in dollars is considerable, $4.4-billion to buy Trans Mountain in 2018 and an estimated $12.6-billion to build the new pipeline. For Albertans wondering what Canada has ever done for them, the money Canadian taxpayers are fronting amounts to a third of Alberta’s entire provincial budget in a typical year.
As the Liberals succeed on one-half of their oil-climate bargain, the other side of the deal must also be kept. Emissions in Canada are still climbing, as of the last official count, and the 2030 deadline in the Paris Agreement for major emission cuts is looming. There is as yet no plan to increase the carbon tax after 2022 and key measures such as lower-carbon fuels have been delayed.
Environmentalists wanted Trans Mountain scrapped. But saying no to this pipeline was not going to stop global oil production. Landlocking Alberta’s oil won’t save the planet.
In the long slog to build the Trans Mountain pipeline expansion, the Liberal government deserves credit for perseverance. As for the battle against climate change, the other element of the government’s middle-way approach, it will be even longer and even more challenging.