A constitutional challenge to the Coastal GasLink pipeline project is now in the hands of the National Energy Board.
Michael Sawyer, a Smithers man who made the application to the board argues that British Columbia did not have jurisdiction to approve the project and had it been assessed under the federal jurisdiction it might not have been.
“I don’t believe there was a proper assessment of the true environmental and social and economic costs of this project and what I would like to see happen is that that get done,” he told The Interior News in a phone interview from Calgary.
“My belief is that once that’s done, this project will not be viewed as being in the public interest and probably would not be approved.”
The NEB heard oral summaries from Sawyer’s lawyer William Andrews of Vancouver, Coastal Gaslink’s legal counsel Sander Duncanson, and a number of other intervenors on May 2 and 3 in Calgary.
Andrews argued that although the CGL pipeline will be entirely within B.C., it will be functionally integrated with TransCanada’s federally-regulated Nova Gas Transmission Limited (NGTL) system and thus should fall under federal jurisdiction.
“TransCanada’s CGL project and NGTL system form a single federal work or undertaking,” Andrews told the board. “The common purpose of CGL project and the NGTL system is to transport natural gas from the WCSB (Western Canada Sedimentary Basin) to domestic and export markets, crossing provincial and national boundaries.”
Andrews cited the Supreme Court of Canada decision in Westcoast Energy v. Canada as the seminal case on jurisdiction.
“It is the first test in West Coast that is relevant here, which is, an otherwise local work or undertaking is subject to federal jurisdiction if it is part of a federal work or undertaking in the sense of it being functionally integrated and subject to common management, control and direction.”
Duncanson countered that argument quoting the dissenting opinion in the Westcoast case by Justice Beverly McLachlin in which she writes: “In summary the Constitution is clear. The provinces have the right to control works and undertakings within their boundaries, including facilities related to the production of resources. Exceptionally, and only to the extent required to maintain interprovincial transportation and communication networks, the federal government … has the power to regulate provincial works and undertakings.”
In reply to Williams’ oral submissions, Duncanson scoffed at the ideas.
“This, the idea of the TransCanada undertaking including the CGL pipeline because there is a common purpose that TransCanada has, this master plan of connecting to LNG markets and it’s all part of this one big thing—that is a current that runs through a lot of what we heard from Mr. Andrews today and the written argument from Mr. Sawyer as well,” he said.
“And on that, just because a corporate parent has an interest in expanding its business does not mean all of that business is necessarily part of the same undertaking.”
Sawyer admits he is a big underdog in the case.
“To be clear, the other side is highly-motivated and very well-funded, so we were up against, collectively I counted … 28 lawyers in the room representing the pro-LNG side of the equation,” he said. “We were totally outgunned.”
Nevertheless, he feels pretty good about how the proceedings are going.
“I have a good case,” he said. “The last time I went to the court of appeal, I won on the Prince Rupert [Gas Transmission] pipeline on, not identical, but very similar facts and similar law, so we think we did a pretty good job and we think if the board reflects on all of the arguments fairly, we think we have a pretty good chance of winning.
“Having said that, we also recognize that if the bookies were taking odds, we’d be a long shot.”
Coastal GasLink is also feeling good about its case.
“Coastal GasLink is confident in the facts put before the National Energy Board,” the company stated in an email following the hearing. “As argued by various participants before the Board, including the Attorneys General of B.C., [Saskatchewan], and Canada, our view is that jurisdiction over Coastal GasLink is and has also been properly with the province. Coastal GasLink continues to construct this fully approved project while awaiting a decision by the Board.”
Even if he wins, Sawyer admitted, he is a long way from stopping the project. It will be at least two to three months before the NEB comes back with a decision, he said, and then, win or lose, there will likely be an appeal.
“This is one stage of a longer story; the story is not over yet,” he said.
While the legal challenge is based on a jurisdictional argument, Sawyer’s motivation is environmental.
“My view is that the project was never subjected to a fair and adequate environmental assessment, that there are many many aspects of the project, that were simply not considered.”
In general terms, he disputes the idea that natural gas is a means of reducing the impact of carbon on the environment.
“If you actually look at natural gas on a life-cycle basis … exploration, drilling etc., if you add that entire life-cycle analysis together … natural gas produced in northeast B.C., shipped to Kitimat, converted to LNG, shipped to China, converted back to gas then used to displace coal, [it] is between two and 27 per cent worse than coal on a life-cycle basis, so this idea that it’s an environmentally-friendly fuel is just mythology.”
In specific terms, he cites, for example, impact on the Graham caribou herd in northeast B.C., which, he said, has been reduced by 82 per cent since drilling began in 1986.
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He also said, based on his own calculations, that the carbon embedded just in the steel pipe that will make up the CGL pipeline, again on a life-cycle basis, is equivalent to five years of B.C.’s total carbon output.
“Show me where in the social and environmental assessment of the impacts of this project is that ever discussed and fact is it wasn’t.
“If, at the end of the day, we do that assessment and we have all these facts on the table so we can make an intelligent decision and British Columbians decide and say, ‘screw it, we don’t care about the caribou, we don’t care about the health risks, we don’t care about anything but the jobs, jobs, jobs,’ I would not necessarily agree with that, but I would say, ‘okay, we’ve got the facts on the table and they still made that decision, I have to respect it.’
“Right now, because all that information wasn’t on the table, I don’t have to respect the decision. I think it was a mistake and I think history will demonstrate it was a mistake.”