BC Government Approves Kinder Morgan Expansion

[killer_carlson]

Cbc.ca reporting that the BC government has been granted an environmental certificate to the Trans Mountain pipeline

They also tacked on 37 more conditions to the 157 NEB conditions.

I'm not sure what the conditions are, but am certain that the Mayor of Vancouver and Jane Fonda will be triggered.

[CorsiHockeyLeague]

Anyone know how in the heck those 37 conditions can possibly be constitutional?

[CaptainCrunch]

There's no way that they can be. This is going to end up in the supreme court again.

[IliketoPuck]

Originally Posted by CorsiHockeyLeague

Anyone know how in the heck those 37 conditions can possibly be constitutional?

Given the "social license" world we live in, does it really matter anymore?

I say that somewhat facetiously, but mostly with sad resignation.

[rubecube]

Originally Posted by CorsiHockeyLeague

Anyone know how in the heck those 37 conditions can possibly be constitutional?

Well the BC Supreme Court originally ruled that the NEB's approval process didn't fulfill the BC government's obligation to consult indigenous groups, so maybe this is related to that?

[CorsiHockeyLeague]

Originally Posted by rubecube

Well the BC Supreme Court originally ruled that the NEB's approval process didn't fulfill the BC government's obligation to consult indigenous groups, so maybe this is related to that?

I could be wrong, because I haven't read the decision, but that seems to me to be a separate issue. The duty to consult doesn't come from provincial edict, but from Section 35 of the Constitution Act.

In other words, it seems to me that even if all 37 conditions have to do with aboriginal consultation, the BC Government has no more authority or jurisdiction to impose those conditions on Kinder Morgan than you or I do, unless I'm missing something (hence my original question).

[Flash Walken]

Originally Posted by CorsiHockeyLeague

I could be wrong, because I haven't read the decision, but that seems to me to be a separate issue. The duty to consult doesn't come from provincial or edict, but from Section 35 of the Constitution Act.

In other words, it seems to me that even if all 37 conditions have to do with aboriginal consultation, the BC Government has no more authority or jurisdiction to impose those conditions on Kinder Morgan than you or I do, unless I'm missing something (hence my original question).

The BC Liberals have made it their MO to operate on court challenges etc.

Even a delay of the status quo is advantageous for them, as their hold on BC, though lengthy at this point, is tenuous.

This might just be another attempt to fence sit, to push the final decision back until after the next election.

[rubecube]

Originally Posted by CorsiHockeyLeague

I could be wrong, because I haven't read the decision, but that seems to me to be a separate issue. The duty to consult doesn't come from provincial edict, but from Section 35 of the Constitution Act.

No, I get that. I'm just wondering if this is the province's attempt to satisfy s.35. If I remember that ruling correctly the judge decided that the province and the feds both had a duty to consult and couldn't just merge it into one, but I could be not remembering that correctly. I'd be interested to see what the additional stipulations are.

[rubecube]

Originally Posted by Flash Walken

The BC Liberals have made it their MO to operate on court challenges etc.

Even a delay of the status quo is advantageous for them, as their hold on BC, though lengthy at this point, is tenuous.

This might just be another attempt to fence sit.

This, too. See the most recent ruling regarding collective bargaining with the teacher's union as an example, or the similar ruling in the health workers case several years ago. Both times they managed to draw out the processes by years.

[Parallex]

Originally Posted by rubecube

No, I get that. I'm just wondering if this is the province's attempt to satisfy s.35. If I remember that ruling correctly the judge decided that the province and the feds both had a duty to consult and couldn't just merge it into one, but I could be not remembering that correctly. I'd be interested to see what the additional stipulations are.

http://vancouversun.com/news/local-n...organ-pipeline

B.C. said in a news release the summary of its additional conditions on the project are:

– Consultation with aboriginal groups when development plans.

– A wildlife species at risk plan for grizzly bear mitigation.

– Management plans to avoid disruption for aboriginal groups using the land for traditional use, or for provincially-authorized trappers and guide outfitters.

– A worker accommodation strategy that describes the potential environmental and social-economic impacts of construction camps on Aboriginal Groups and communities and includes a plan to provide medical and health services for employees and contractors using the construction camps.

– An offset plan for any provincial parks or protected areas impacted by the pipeline.

– Reporting greenhouse gas emissions from construction.

– Created a research program on the behaviour and clean-up of heavy oil spills in water to improve Trans Mountain’s response to oil spills.

– New emergency response plans for notification, care of oiled wildlife, environmental sampling and details on how Trans Mountain would coordinate with the many players involved.

– An increase to Trans Mountain’s emergency preparedness, including full-scale drills.

– A First Nations marine outreach program along the shipping route to address the impact of increased tanker traffic on the Salish Sea.

– Provide opportunities for First Nations to participate in construction and monitoring of pipeline.

[rubecube]

Originally Posted by Parallex

http://vancouversun.com/news/local-n...organ-pipeline

Gotta say, none of those things sound all that unreasonable to me.

[Bring_Back_Shantz]

Originally Posted by CorsiHockeyLeague

Anyone know how in the heck those 37 conditions can possibly be constitutional?

Seriously?
Do you have any idea what the conditions are?

To answer your question, they could be pretty simple things like restricting construction times during times of year that are sensitive to wildlife in certian areas, or providing road access to some spot during construction.

Why would you jump to the conclusion that they would in any way be unconstitutional?

Edit: looks like they are listed above...so yeah, that's how.

[Flash Walken]

Originally Posted by Bring_Back_Shantz

Seriously?
Do you have any idea what the conditions are?

To answer your question, they could be pretty simple things like restricting construction times during times of year that are sensitive to wildlife in certian areas, or providing road access to some spot during construction.

Why would you jump to the conclusion that they would in any way be unconstitutional?

I think he is saying the province can't constitutionally add the extra clauses. Like, as a mechanism of governance.

[CorsiHockeyLeague]

Originally Posted by Bring_Back_Shantz

Why would you jump to the conclusion that they would in any way be unconstitutional?

Because the constitution delegates legislative authority over interprovincial pipelines exclusively to the Federal government. It doesn't matter what the conditions are, only the Feds are allowed to create a system that regulates (i.e. imposes conditions on) projects that cross a provincial or national border.

The policy goal underlying this was to ensure that individual provinces couldn't try to veto or extract undue benefit from projects that are determined to be in the national interest simply because a portion of the project is being built in that province. This applies equally to Coderre's ramblings about Energy East.

EDIT: I should probably note that I'm not saying it's impossible to argue that additional conditions are constitutional. There's probably a view that these conditions supplement the NEB process rather than frustrating it. However, it seems to me that the NEB process is supposed to be an exhaustive regime for reviewing and approving these projects, as they take into account considerations of environmental impact within the province. Adding more conditions would be akin to B.C. passing a "British Columbia criminal code", and arguing that "these criminal laws don't conflict with the Federal Criminal Code, and you can comply with both at the same time, so this is all perfectly constitutional".

[GGG]

Originally Posted by Parallex

http://vancouversun.com/news/local-n...organ-pipeline

Everything in that list seems pretty SOP for the regulatory side of an oil company. Kinder won't protest those conditions

[Bring_Back_Shantz]

Originally Posted by CorsiHockeyLeague

Because the constitution delegates legislative authority over interprovincial pipelines exclusively to the Federal government. It doesn't matter what the conditions are, only the Feds are allowed to create a system that regulates (i.e. imposes conditions on) projects that cross a provincial or national border.

The policy goal underlying this was to ensure that individual provinces couldn't try to veto or extract undue benefit from projects that are determined to be in the national interest simply because a portion of the project is being built in that province. This applies equally to Coderre's ramblings about Energy East.

Except in a project like this there are still a whole host of things that provinces need to provide/are under their jurisdiction. For example a lot of wildlife restrictions are provincially controlled, building permits, etc.

If the province was withholding something based on something that was outside of their jurisdiction then yeah, it could definitely be unconstitutional, but there are a whole host of conditions the province could demand for a whole host of reasons that are well within their jurisdiction.

[CorsiHockeyLeague]

Originally Posted by Bring_Back_Shantz

For example a lot of wildlife restrictions are provincially controlled, building permits, etc.

Sure, but if these things are applied in a manner that frustrates the purpose of the NEB Act, they're read down so as not to apply to the interprovincial undertaking owing to federal paramountcy.

For example, if the NEB grants a permit to build the pipeline in a particular location, and the Municipality of Burnaby refuses to grant them the requisite permits to build the facilities they need, it doesn't matter if Burnaby has the jurisdiction to grant or withhold such permits in general.

Anyway I haven't thought about this very hard, which is why I asked the question, so these are more musings and intuitive reactions than anything.

[Bring_Back_Shantz]

Originally Posted by CorsiHockeyLeague

Sure, but if these things are applied in a manner that frustrates the purpose of the NEB Act, they're read down so as not to apply to the interprovincial undertaking owing to federal paramountcy.

For example, if the NEB grants a permit to build the pipeline in a particular location, and the Municipality of Burnaby refuses to grant them the requisite permits to build the facilities they need, it doesn't matter if Burnaby has the jurisdiction to grant or withhold such permits in general.

Anyway I haven't thought about this very hard, which is why I asked the question, so these are more musings and intuitive reactions than anything.

Yeah, and if they aren't then they are totally constitutional.

That was kind of my point when I replied to your question.

Could the conditions be unconstitutional? Sure.
Is there any reason to assume they wouldn't be (which is kind of what your question assumed)? Nope.

[CorsiHockeyLeague]

Originally Posted by Bring_Back_Shantz

Is there any reason to assume they wouldn't be (which is kind of what your question assumed)? Nope.

I just explained why they wouldn't be: interprovincial works, including pipelines, may only be regulated by the federal government. If you're trying to regulate an interprovincial pipeline, you're at first instance encroaching on federal jurisdiction just as you would be if you tried to pass a criminal law statute.

If you're passing a law that in general regulates, for example, property and civil rights within the province, that's fine, but you have to understand that it doesn't apply to interprovincial pipelines. It should be read down so as not to apply to them. In this case, the BC government is creating regulations (in the form of conditions) that are explicitly intended to affect an interprovincial pipeline. It seems to me that doesn't work, but I am prepared to stand corrected.

You could argue that there's a double aspect to the project, but that would be a tough argument under the old division of powers cases, it seems to me.

[Locke]

Okay...my only issue with that is the 'offset plan' for environmental damages.

Not that I'm not in favour of that per se, but that I was under the impression that this was standard in most plans of this type and magnitude.

In my experience with O&G contracts, there is always an account set up for environmental recovery and repair. Am I wrong on this? I'm surprised that this is an additional contingency/add-on.