Suzanne Anton: Encouraging news about major Canadian energy projects, needed more badly than ever.
Emerging from the economic crisis resulting from COVID-19 will be long and arduous.
A bright spot for Canadians has been the energy industry. More than ever, it is important to recognize the value it brings to our economy and the importance of maximizing that value.
Twenty years ago, most Canadians were on board with Alberta oil, BC natural gas, and hydro-electricity, energy from the sun.
Times have changed. Today, projects are attacked on all fronts. Pipelines are thwarted, investment in oil sands is slowed, and layers of oversight add time and unnecessary cost to projects, which will be borne by consumers.
Fortunately a pair of recent decisions has helped move two of the most important projects along. These include the dismissal by the Supreme Court of Canada of the leave to appeal the Trans Mountain (TMX) challenge by Coldwater First Nation, and the BC government settlement with Prophet River First Nation around its Site C challenge.
First TMX, which has been struggling for a decade to get the approvals it needs. The original proponent gave up, and the federal government was forced to buy the project, at vast expense to the taxpayers.
In early July, the Supreme Court of Canada finally put to rest the endless stream of cases around the pipeline when it refused leave to appeal the decision of the Federal Court of Appeal in the Coldwater First Nation case.
TMX is essential to Canada’s economy. We have lost billions in the last decade by being forced to sell Canadian oil into only one marketplace, the United States. We gift millions of dollars every day to the US consumer. No wonder Americans love to fight our projects.
It has been an appalling loss for our country, and particularly aggravating now, when we could use those revenues more than ever to help Canadians. Walk through downtown Vancouver, and you will see endless ways those funds could be put to better use.
The majority of First Nations along the TMX route support the project. Of the 129 groups potentially impacted, more than 120 support or do not oppose the project, including 43 who had signed benefits agreements when the case was heard.
The Federal Court of Canada in 2018 found two fundamental defects with the previous government’s approval of TMX, namely some aspects of the environmental assessment and the failure of the duty to consult. The current government did not appeal, but took the court’s decision and renewed their efforts. In June 2019, Cabinet once again gave approval.
Four First Nations remained unhappy with Cabinet’s second approval and once again took the matter to court: Coldwater on the Thompson/ Fraser rivers, a group of Sto:lo First Nations, and the Squamish and the Tsleil-Waututh in the lower mainland.
This time, the Federal Court of Appeal dismissed the case (February 2020). They refused to hear any matters which amounted to a re-litigation of issues already decided. And, importantly, they found that this time, consultation was adequate. The goal of consultation is to reach overall agreement, but that is not always possible. The law is clear that failed consultations do not make a veto; there is no duty to agree.
The court added that consultation is on ongoing commitment. Coldwater, for example, was not happy with the route the pipe would follow. Trans Mountain has an ongoing obligation to work with Coldwater to ensure the best route is found.
The Nations filed an appeal to the Supreme Court of Canada, which dismissed leave to appeal on July 2. The Court of Appeal decision stands.
The second crucial decision is the recent settlement between the Prophet River First Nation , the province, and BC Hydro relating to the Site C project.
Prophet River First Nation is a Treaty 8 signatory, who had long argued that the dams on the Peace River interfered with their traditional rights. Through an extensive agreement announced on August 5, the Nation has dropped its claim, and the province and BC Hydro have agreed to benefits and land agreements.
Settlements are preferable to litigation. The agreement reached is extensive and a demonstration of good will by all parties.
Site C has been burdened with delay, layers of oversight, and technical challenges, all of which costs will be borne by BC consumers. It is good to cross this piece of litigation off the list.
Many challenges remain with energy projects in BC. TMX has many hurdles remaining. Site C has technical challenges which will add time and costs.
Poverty, the overdose crisis, and homelessness are formidable burdens to our province. Energy can pave the way to our prosperity. TMX and Site C are only a part of the picture.
To maximize the benefits of our oil and gas industries, the country needs need more pipelines, particularly Energy East, to get Canadian oil to the east coast refineries and replace oil from the US, Russia, Saudi Arabia, and Venezuela. How many Canadians prefer buying oil from dubious regimes rather than using our own?
Most of all, we need the completion of the projects underway.
Most British Columbians can see the needs in their own communities. Selling resources at a discount or sending our industry to other countries will help those countries, not those in need in our own.
Hon. Suzanne Anton QC is a former Minister of Justice and Attorney General of British Columbia and a former Vancouver City Councillor
- Suzanne Anton last took note of Michael Moore’s last film – not because it generated outrage, but because of who was outraged this time.
- Speaking of court cases, Chris Gardner and Paul de Jong are among the construction industry leaders challenging the NDP government in court, saying everyone deserves the opportunity to work on public projects.
- Maclean Kay and Jordan Bateman discussed a notable Supreme Court decision on #BCPOLI Hotstove back in January 2020 – which, again, feels like years ago.