Alberta premier hints province has road map to restart Trans Mountain, respect court ruling

Hours ahead of her meeting with Prime Minister Justin Trudeau, Alberta Premier Rachel Notley said officials in her government have developed strategies to restart construction on the Trans Mountain pipeline expansion while still respecting last week’s court ruling that put the project on hold.

Earlier Wednesday, Trudeau told an Edmonton radio station that he was prepared to abide by a Federal Court of Appeal ruling to consult more fully with Indigenous people.

At an event in Spruce Grove, Alta., Notley said while that’s important, the process may take too long while people are out of work.

She said her officials analyzed the court ruling all weekend and have come up with measures that respect the principles in the legal decision but also get construction underway.

The Federal Court of Appeal last Thursday reversed a cabinet decision to allow construction on the Trans Mountain expansion, ruling there was not enough consultation with Indigenous people and that the National Energy Board didn’t properly consider the impact of an increase in oil tanker traffic.

Minutes after the court ruling was released, Kinder Morgan shareholders approved the sale of the existing pipeline and other assets to the federal government for $4.5 billion. The purchase closed on Friday, making the federal government wholly responsible for what happens next.

Notley has demanded Ottawa file an appeal of the ruling, or come up with a legislative fix. In Edmonton on Wednesday, Trudeau told radio station CHED that using what he called “tricks” to ram the project through might be satisfying in the short term but would create further legal fights down the road.

Trudeau said the court ruled more consultation and study is needed and that’s what his government intends to do.

“Using a legislative trick might be satisfying in the short term, but it would set up fights and uncertainty for investors over the coming years on any other project, because you can’t have a government keep invoking those sorts of things on every given project,” he told the radio station.

“People want to know that we are doing things the right way for the long term — that jobs that get started will continue and won’t get stopped by the courts. That’s the change we are focused on making.”

But hours later, in a news conference at the Northern  Alberta Institute of Technology, Trudeau said legislative and legal options are still on the table.

“We’re looking at various options, including legislation, including appeals, and we’re also looking at what we need to do to respect what the court has laid forward as the process necessary,” he said.

A decision on whether to appeal will be made “within the deadline provided to us,” Trudeau said. The government has 60 days from last Thursday to request leave to appeal to the Supreme Court of Canada.

​Alberta senator proposes solution

Alberta Independent Sen. Doug Black is also calling on Ottawa to trump last week’s court ruling against the Trans Mountain pipeline with a series of legislative manoeuvres.

Black is calling on the prime minister to recall Parliament and pass his private member’s bill, which already has Senate approval.

It would need additional language to say that Trans Mountain is in the national interest, but the bill could help the government get around the Federal Court of Appeal decision that effectively killed the pipeline, Black said.

Black detailed his “roadmap” to construction in an open letter to Trudeau last week.

“Our premier has called for bold action on getting Trans Mountain going, and I think my letter provides exactly that,” Black said in an interview Wednesday with CBC Radio’s Edmonton AM.

In Edmonton on Wednesday, Trudeau rejected the suggestion that the federal government use legislation or a court appeal to get construction started quickly.

​​’Enough time, enough talking’

Black said if Ottawa is serious about the pipeline, it must immediately adopt his private member’s bill, Bill S-245 the Trans Mountain Project Act.

Then, by either order-in-council or amendment to the bill, Ottawa should give the National Energy Board a four-month window to review the impacts of coastal tanker traffic and complete consultations with previously excluded Indigenous communities, Black said.

Amendments to the bill could then ensure that temporary operating permits are issued to Trans Mountain.

“I’m told that work has principally been done, so I don’t don’t think it’s a big deal that the NEB needs to go back, dust it off, look at it and make whatever recommendations they need to make,” Black said.

Trudeau could resolve the conflict and put shovels back in the ground in a matter of months, Black said.

“The prime minister will take into account what he hears and then frankly the permits need to be reissued,” Black said.

“We’ve spent enough time, enough talking, enough court cases. It’s just time to build that pipeline.”

Black would also like to see Ottawa appeal the decision to the Supreme Court. Confusion around the legal duty to consult is squarely to blame for putting the Trans Mountain  pipeline in limbo, he said.

Without legal clarity, major national resource projects will face more rejection, he said.

“We do not understand what the duty to consult is, and one court goes one way and another court goes another way.

“What are the rules? What does proper consultation look like? It does not exist in Canada, so either the Supreme Court of Canada needs to define that or Parliament needs to define that.”