The Federal Court of Appeal has granted British Columbia intervener status in the legal challenge launched against the Trans Mountain pipeline expansion project — along with a stern rebuke of the province’s filing.
On Mar. 9, 2017, 19 separate lawsuits from First Nations and environmental groups challenging Ottawa’s approval of the project were consolidated as one case.
The controversial pipeline project would expand the capacity of a currently existing pipeline route between Edmonton and Burnaby and significantly increase tanker traffic out of Burrard Inlet.
Interveners — who are not litigants but provide an additional perspective during trial — were given a chance to apply for status within 35 days of this order.
Alberta successfully applied and received intervener status, but B.C.’s attorney general, under the previous Liberal government, did not.
Before the deadline expired, the writ for the B.C. election was issued.
The unusual result, with no immediate clear winner, meant it was July 18 before the current NDP government was sworn in.
On Aug. 10, the NDP government announced it would be joining the legal fight against Ottawa’s approval of the $7.4-billion project.
It filed its official application for intervener status on Aug. 22.
A ‘blasé’ approach
In his judgment, Justice David Stratas took issue with several parts of B.C.’s filing, describing the provincial approach as “blasé.”
“A number of aspects of British Columbia’s motion are unsatisfactory,” he wrote.
Stratas said, with a challenge of this nature, time is of the essence, and it is in the public interest to ensure the fastest possible hearing on this matter.
He asked why it took five weeks — until Aug. 22 — for B.C. to file the motion and questioned why the seven-paragraph affidavit “does not offer a single word of explanation” for the delay.
Stratas goes on to describe the province’s submissions as vague and imprecise. He said B.C. does not appear to understand the ground rules of the “complex proceeding it is seeking to enter.”
“British Columbia says that it considers its participation in the proceedings important, yet after five weeks, it cannot yet say with much specificity how it intends to participate,” he wrote.
Despite his criticism, Stratas said there are still good reasons to give B.C. status, especially since Alberta has already been granted intervener status.
However, the judge placed a number of conditions on B.C.
The province has to file a submission no longer than the one filed by Alberta in a “highly expedited” fashion by the same deadline — which happens to be this Friday, Sept. 1.
B.C. is also not allowed to advance new issues in its submissions.
Stratas was very particular about these conditions, saying, if any are breached the appeal panel may revoke British Columbia’s status as an intervener.
He also awarded Trans Mountain $7,500 in costs to be paid by the province, because, due to its late filing, Trans Mountain has to file a second memorandum.