NEB déjà vu: New consultation on Trans Mountain won’t fix a broken pipeline plan

Minister of Natural Resources Amarjeet Sohi held a press conference today announcing a next step in the unfolding saga of the Kinder Morgan Trans Mountain pipeline expansion.

The government is ordering the National Energy Board (NEB) to redo its environmental review of the pipeline project, this time including the effects of increased oil tanker traffic. This responds in part to the Federal Court of Appeals decision, which found the approval failed to consider the pipeline expansion’s impact on endangered Southern Resident Killer Whales and their critical habitat (more on that in Ecojustice’s response to the decision).

The government is giving the NEB twenty-two weeks, or less than six months, for the review which is to include opportunities and funding for public and Indigenous participation, as well as appointing a special marine technical advisor for the review. This means a decision from the NEB in late February or early March, followed by another Cabinet decision.

Today’s announcement gave absolutely no details about how the government is proposing to fix the failure to adequately consult with Indigenous peoples, a significant conclusion of the Federal Court of Appeals case.

West Coast Environmental Law (WCEL), which represented First Nations in the lawsuit, responded today:

“While the government does need to take steps to correct the mistakes in the NEB’s review of marine shipping impacts, we are very concerned about the lack of a concrete plan or timeline for renewed Indigenous consultation – which is a glaring omission,” said Jessica Clogg, Executive Director & Senior Counsel. “The court was very clear that Canada ‘fell well short of the mark’ in its constitutional duty to consult with affected First Nations, and any plan to move forward on Trans Mountain must take that duty seriously.”

So, to recap, the government is asking the same flawed, industry influenced NEB that they roundly criticized during the last federal election, to again review Trans Mountain, and again have seemingly chosen an arbitrary timeline associated with it.

Meanwhile, the stakes are high.

As Ecojustice tweeted this morning, “Fed’s study unlikely to tell us anything new. During the original NEB review @ecojustice_ca clients @Raincoast and @living_oceans presented evidence that sows #TMX has more than 50% chance of dooming #SRKW [Southern Resident Killer Whales] to extinction.”

And if Trudeau actually wants to walk the talk on Indigenous reconciliation, a meaningful process needs to be established, one that does not have a foregone conclusion. Respecting consent includes respecting no.

As WCEL’s Jessica Clogg also states: “We will be evaluating not just whether basic legal requirements are met, but whether the federal government is living up to its own commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples, which establishes free, prior and informed consent as the minimum standard for the outcomes from consultation.”

It’s hard to conclude that any process will be unbiased given the broader context of Prime Minister Trudeau himself, as well as key cabinet members, continuing to insist that this project will be built.